4 Abb. Pr. 220 | N.Y. Sup. Ct. | 1857
—Although the undertaking of the plaintiffs’ sureties was that they would pay to the defendants such damages as they might sustain by reason of the injunction if “ this court” should finally decide that the plaintiff was not entitled thereto, the liability of the sureties is the same as it would be, provided they had undertaken to pay damages if the court should finally decide that the plaintiff was not entitled to the injunction. It was the intention of the sureties to bind themselves in the manner and to the extent required by the statute, to enable the plaintiff to obtain the injunction. The statute provides that the party who procures the injunction must give an undertaking, with or without sureties, to the effect that he will pay to the party enjoined such damages as he may sustain by reason of the injunction if “ the court” shall finally decide that the plaintiff was not entitled thereto. (Code, § 222.)
When this court decided that the plaintiff was not entitled to the injunction, and gave judgment in favor of the defendants, the entire force of the injunction was spent (Hoyt a. Carter, 1 How. Pr. R., 140). It was then a vacated order, and the liability of the sureties who executed the undertaking that authorized the judge to grant it, was fixed. It is true, if the Court of Appeals had reversed the judgment of this court, such reversal would have absolved the sureties from all liability upon the undertaking. But the Court of Appeals affirmed the judgment of this court; the sureties did not therefore enjoy the good fortune which a reversal would have brought them. How are they liable upon the undertaking for the damages which the defendants have sustained by reason of the plaintiff’s appeal from the judgment of this court to the Court of Appeals. I am of the opinion they are not liable to pay such damages. They only bound themselves to pay to the defendants such damages as they might sustain by reason of the injunction. The judgment of this court dissolved the injunction, and the appeal therefrom to the Court of Appeals did not give it force again. (Hoyt a. Car
When the plaintiff appealed to the Court of Appeals, no undertaking was given except the one required by section 334 of the Code, and that did not have the effect to stay the defendants’ proceedings for the enforcement of the judgment of this court; nor did such undertaking, or the plaintiff’s appeal to the Court of Appeals prevent the levying and collecting of the disputed tax of the taxable inhabitants of Guilford. Whoever signed that undertaking agreed that the plaintiff would pay all costs and damages which might be awarded against tire plaintiff on the appeal, not exceeding two hundred and fifty dollars, and nothing more (Code, § 334).
But it is claimed that the sureties who executed the undertaking for the injunction are liable to pay Mr. Dickinson’s counsel fees for arguing the cause for the defendants in the Court of Appeals, because this court made an order continuing the injunction until the decision of the action in the Court of Appeals. It is not necessary to inquire whether this court had the power to make that order, for I am of the opinion the order did. not make the sureties liable for any damage that the defendants have sustained by reason of the plaintiff’s subsequent proceedings in the action. That order was a new injunction, and a new undertaking to pay the damages which it might occasion to the defendants should have been required by them, and given by the plaintiff.- All injunctions are but the orders of the judges or courts that grant them (Code, § 218). The order continuing the injunction is as much a new injunction as it would be if it had stated, in so many words, that all proceedings on the part of the defendants for the levy or collection of the disputed tax were stayed until the decision of the action in the Court of Appeals. The reference to the defunct injunction in the order was made to save the trouble of rewriting it; such reference did not vary the legal effect of the order, or wipe out the annihilating force of the judgment of this court upon the injunction. The order created a new injunction out of the defunct one; and it must be
The order of this court, which in terms continued the injunction that was destroyed by the judgment previously rendered in the action, did not affect the liability of the sureties who signed the undertaking for such injunction, any more than a simple order staying proceedings on the part of the defendants upon the judgment, without any reference to such injunction, would have affected their liability. So long as the judgment that annulled the injunction remained in full force, it was not in the power of this court, or of any other court, to extend the liability , of the sureties who executed the undertaking for the injunction, so as to cover damages which the defendants sustained by reason of the granting of a subsequent injunction order in the action. Neither the name nor the wording of the second injunction order can affect the sureties. The judgment in the action limited their liability, and it cannot be extended without their consent.
The report of the referee must be set aside, so far as it allows the defendants $200 damages for money that they paid to Mr. Dickinson for two journeys from Binghamton to Albany prepared to argue, and for arguing, the appeal in the Court of Appeals. But as to the residue of the damages allowed by the referee, the report must be confirmed. No costs of the motion are given to the plaintiff, because none are claimed in the notice of the motion, and none were claimed upon the argument.
