26 N.Y.S. 965 | N.Y. Sup. Ct. | 1894
This proceeding was conducted on the erroneous theory that because an injunction was granted pending the action, which resulted in favor of the defendants, therefore they were entitled to recover as damages all the costs and expenses incurred in defending the action; whereas they were only entitled to recover the damages sustained by reason of the granting of the injunction, which, so far as the evidence discloses, consisted of the expenses incurred in attempting to have it dissolved. But, as no objection was taken to the admission of the evidence offered, a reversal for that reason will not be had.
The referee has found that the total cost to the defendants of the action and of this proceeding, including the expense of the motion to vacate the injunction, was $200; but it appears that the defendants were awarded by the judgment, and their attorney has received -from the plaintiffs, $115, which sum the referee should have deducted from the total amount which he found had been incurred by the defendants in the action. Howell v. Miller, 5 N. Y. Law Bul. 88. The order appealed from should be so modified as to direct that the plaintiffs pay to the defendants the sum of $85, and, as so modified, affirmed, without costs.
