Truax, J.
Section 620 of the Code of Civil Procedure provides, in a case of this kind, that the party applying for an injunction must give an undertaking, executed by him, or by one or more sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding a sum specified in the undertaking, as he may sustain by reason of the injunction, if the court finally decides that the plaintiff was not entitled thereto.
The defendant contends that the discontinuance of the action by plaintiff is, in effect, a decision by the court that the plaintiff was not entitled to the injunction; and cites several authorities to sustain that proposition. But none of the cases cited by him present the same state of facts that is presented in this case. In Palmer v. Foley, 71 N.Y. 106" court="NY" date_filed="1877-11-13" href="https://app.midpage.ai/document/palmer-v--foley-3631973?utm_source=webapp" opinion_id="3631973">71 N. Y. 106, an injunction was obtained. -On appeal to the general term, the order of injunction was modified, and defendant was allowed to put in a supplemental answer, on condition that the plaintiff might discontinue on payment of costs. The answer was served. *550After that an order of discontinuance was entered on consent, and on payment, of costs. It was claimed by the defendant that what was done was equivalent to the court’s finally deciding that the plaintiff was not entitled to the injunction. The court of appeals said: “Cases are cited which almost hold to that, effect. In most of them there was some action of the court upon the validity or merit of the injunction order adverse to the plaintiff’s right to have had it-allowed. The plaintiff, after such action, discontinued of his own motion, and presumably in consequence thereof. ” The court of appeals held that the-court below erred in holding that the discontinuance was an adjudication by the court, or equivalent to one, that plaintiff was not, in the first instance, entitled to an injunction, and it reversed the order granting a reference. In Benedict v. Benedict, 15 Hun, 305, affirmed in 76 N.Y. 600" court="NY" date_filed="1879-02-11" href="https://app.midpage.ai/document/benedict-v--benedict-3595145?utm_source=webapp" opinion_id="3595145">76 N. Y. 600, there had beem a reference-to a referee, and there had been an order of reference to hear and determine the action, and the referee had reported that the verbal contract between the parties was void, and refused to decree a specific performance. The-court held (see 15 Hun, 307) that the referee had decided nothing concerning said injunctions; that the judgment entered on the report of the referee did not in any manner refer to said injunctions, or either of them; and that, according to the conditions of the undertaking, there must be a final decision,—• that is, one made at the termination of the action; and the decision, in order-to authorize an action on the undertaking, must be, in effect, that the plaintiff was not, at the time of obtaining the injunction, entitled thereto. In Johnson v. Elwood, 82 N.Y. 362" court="NY" date_filed="1880-10-15" href="https://app.midpage.ai/document/johnson-v--elwood-3631666?utm_source=webapp" opinion_id="3631666">82 N. Y. 362, a temporary injunction was dissolved by stipulation, on the termination of another suit. Motion was then made to-dismiss the complaint, and an order was granted on defendant’s motion discontinuing the action. Judgment of discontinuance was entered, and then an order of reference as to damages was granted. .It was held by the court of appeals that the same was improperly granted, because it had not been finally-decided that plaintiff was not entitled to the injunction. In Waterbury v. Bouker, 10 Hun, 262, the court refused to continue a preliminary injunction, and dissolved the same, and gave plaintiff leave to discontinue the action. It. was there held that plaintiff was entitled to a reference as to damages, because-“by the orders made denying the continuance of the injunction, and discontinuing the action, it did finally appear that the plaintiff was not entitled to-the injunction.” In the ease of Carpenter v. Wright, 4 Bosw. 655, the injunction, on motion of defendants, and on a hearing of all the parties on the merits, was vacated by the order of the court, and thereafter an order was entered, at the plaintiff’s instance, discontinuing the action on payment of defendant’s costs. The court held that this was in effect a determination that the plaintiff was not entitled to the order of injunction. In the case ot SteamShip Co. v. Toel, 85 N.Y. 646" court="NY" date_filed="1881-06-21" href="https://app.midpage.ai/document/matter-of-raymond-3597179?utm_source=webapp" opinion_id="3597179">85 N. Y. 646, the application by the defendants for a refer-ence to ascertain damages sustained by the injunction was not opposed. Therefore e’s report was confirmed at the special term, and plaintiff appealed from such order to the general term, and there the damages were reduced, and plaintiff then appealed to the court of appeals, so that on the appeal to that court, the only question there to be determined was whether the court at special term erred in confirming the report, and whether the order at general term was-erroneous. The court of appeals said (see page 647) that the only matter litigated before the referee was the amount of damages; and, further: “We-cannot inquire now whether or not the plaintiff was in fact entitled to the injunction. That matter, for the purpose of this proceeding, has been conclusively established against the plaintiff.” In Hope v. Acker, 7 Abb. Pr. 308" court="None" date_filed="1858-10-15" href="https://app.midpage.ai/document/hope-v-acker-6135652?utm_source=webapp" opinion_id="6135652">7 Abb. Pr. 308,. this court, at special term, said that “a discontinuance terminates an action-, to all purposes, and operates to dissolve an injunction. * * * If such facts-give the defendant a right to damages upon the undertaking, he must establish it by action thereon.” The question now before me was not before0 the court in Hope v. Acker. I am of the opinion that, before an order of refer*551ence can be granted in an action of this kind, there must be some determination by the court that the plaintiff was not entitled to the injunction, and that such fact has not been decided in this case. It is not enough that the plaintiff has discontinued the action. The motion is denied, but without costs.