| NY | Feb 25, 1876
The consent of the plaintiff to the order of reference obviates the objection that judgment had not then been entered. An order to ascertain damages is not regular until the judgment has been entered, but as the judgment was entered immediately after, the irregularity was formal and was waived by the consent to the entry of the order of reference.
The referee has not reported the items of damage which he awarded nor the facts or conclusions of law upon which his award was based. We are, therefore, required to give his finding the most favorable intendment. The plaintiff might *329 have compelled a more explicit finding. It is, to say the least, doubtful whether the injunction prevented the defendant from opening the mouth of the drain. The action was brought to restrain the defendant from removing sand from the beach, and a temporary injunction restrained such removal during the pendency of the action. Although the general words were used restraining the defendant from interfering with or disturbing the sand, yet looking at the objects and purposes of the action and the injunction, it would be difficult to hold that such a disturbance, as the removal of drift and sand from the mouth of the drain would be a violation of the injunction.
It appears that after the storm which filled up the mouth of the drain, the defendant applied to the plaintiff for a modification of the injunction to enable him to open it, and there is a direct conflict of evidence between the plaintiff and defendant as to what took place. The defendant testified that the plaintiff in substance claimed that the injunction restrained the opening of the mouth of the drain and refused to modify it, while the plaintiff testified that he told the defendant that the injunction did not restrain such opening, but if it did, that he would give him a stipulation to allow him to do it, which the defendant refused to accept.
We must assume that the referee decided in favor of the version of the defendant. If so, he had the opinion of both parties that such would be the effect of the injunction, which, in connection with the general language employed, would perhaps justify him in holding accordingly. In the absence of specifications by the referee, we cannot say that there were no damages sustained in consequence of the injunction, if the construction above indicated is given to it. There is evidence tending to show that the drain was liable to be filled up by the action of the water, and the defendant had been in the habit of opening it, and as we must presume, had the right to do so, and if he was prevented by the injunction, some damages would be caused thereby, and it is impossible to determine $250 is excessive. *330
The General Term reduced the damages to $250, the amount specified in the undertaking, and modified the order accordingly, but affirmed that part of the order which required the plaintiff to pay, in addition to the $250, the sum of $380.38, for disbursements and referee's fees paid by the defendant upon the reference to ascertain the damages; this allowance was ratified upon the ground that the court had power against the plaintiff in the action "to award the costs of any proceedings in the action." I think the learned judge erred in assuming that this was a proceeding "in the action;" the action was at an end; final judgment had been entered therein. The reference was had in pursuance of section 222 of the Code, requiring an undertaking to be given upon granting an injunction, and providing for ascertaining the damages, by reference or otherwise, as the court shall decide. This proceeding constituted no part of the action. The section of the Code referred to was adopted as a substitute for the thirty-first rule of the Court of Chancery. Until that rule was adopted, the court had no power to award damages against a party for an injury occasioned by an injunction, even though it was determined in the action that the party was not entitled to it. Hence, neither the party nor his sureties are liable beyond the amount specified in the undertaking. (Leavitt v. Dabney,
9 Abb. Pr. [N.S.], 373; 2 Paige Ch., 116" court="None" date_filed="1830-04-06" href="https://app.midpage.ai/document/cayuga-bridge-co-v-magee-5547802?utm_source=webapp" opinion_id="5547802">2 Paige, 116; 3 Barb., 232" court="N.Y. Sup. Ct." date_filed="1848-06-05" href="https://app.midpage.ai/document/garcie-v-sheldon-5457372?utm_source=webapp" opinion_id="5457372">3 Barb., 232; 40 How. Pr., 280.) We were referred to the general language in High on Injunctions (§ 962), that independent of statutory enactments, a court of equity has power, upon the dissolution of an injunction, to ascertain the damages and decree their payment. The authorities cited do not sustain the broad proposition laid down. The principal authority cited is Sturgis v. Knapp
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The order must be modified, so as to fix the damages by reason of the injunction at the sum of $250, without costs to either party in this court.
All concur.
Ordered accordingly. *332