16 Abb. Pr. 1 | New York Court of Common Pleas | 1874
There was no authority to enter up, a judgment upon the referee’s report of the damages which the defendants had sustained by reason of the injunction; nor, when the referee’s report is confirmed, is there anything in section 222 of the Code authorizing the entry of a judgment for the amount against the sureties. The liability of the sureties in this undertaking is to pay such damages, not exceeding five hundred dollars, as the defendants may sustain by reason of the injunction, such damages to be ascertained by a reference, or otherwise, as the court may direct. The sureties, by their undertaking, have stipulated for a mode in which it shall be ascertained whether they are liable or not to pay any amount, and until the court has, by reference or otherwise, ascertained this, then* liability is not established or fixed. The obligation is to pay such damages as the defendants may sustain by reason of the injunction. Money expended for the employment of counsel to obtain a dissolution of the injunction and to defend the suit brought to restrain the defendants by injunction, comes under this bead. It is a direct expense incurred by the defendants in consequence of the injunction, and if actually paid out by him, should be allowed (Corcoran v. Judson, 24 N. Y., 106 ; Coates v. Coates, 1 Duer, 664). An allowance was made to the defendants, under the Code, after the complaint was dismissed, of two hundred and fifty dollars. This, in the language of the Code, “is a certain sum allowed to the prevailing party by way of indemnity for his expenses in the action.” This amount has been paid to the defendants, and is a part of the ex
An order was subsequently entered deducting from the four hundred dollars reported as the damages sustained by defendants, Piske, Wenman, Tinkham, and Donaldson, three hundred and twenty-five dollars, being the amount of the taxed costs of the action, which had been paid by plaintiff as part of the three hundred and forty-seven dollars and ninety-four cents, awarded to all the defendants in the action, and confirming the report for seventy-five dollars damages together with the one hundred and one dollars paid for referee’s fees on reference, one hundred and seventy-six dollars altogether, and denying motion for allowance, trial fee, and costs of motion to confirm for want of power to grant same in this proceeding, also denying motion to order judgment in favor of defendants Piske,
From this order the defendants appealed.
By the Court.
The object of this action was to enjoin the defendants in the use of an unpatented secret of trade, and this proceeding brings in review, on appeal, a decision made upon the right of the defendants to enforce an undertaking in the sum of five hundred dollars given on the granting of a preliminary injunction. There were five defendants, and, on the hearing upon the return of the order to show cause why the injunction should not be continued, that preliminary injunction was dissolved as to four of the defendants, and retained as to the defendant Haynes. An expense of five hundred dollars was incurred by all of the defendants for counsel fees on that occasion ; but, by reason of the retention of the injunction against Haynes, the damages of defendants on that motion have, upon a reference had under section 222 of the Code, been assessed at four hundred dollars. Upon a subsequent trial on the merits, the complaint was dismissed as to all the defendants, and they recovered for costs three hundred and forty-seven dollars and ninety-four cents, which included an extra allowance of two hun dred and fifty dollars. These costs have been paid, and the defendant and his sureties claim, and the judge from whose decision this appeal was taken has decided,
The language of the courts is uniformly to the contrary, and that none of the general costs of this action •constitute any part of such damages (Coates v. Coates, 1 Duer, 644 ; Childs r. Lyons, 3 Robt., 704 ; Strong v. De Forest, 15 Abb. Pr., 427; Town of Guilford v. Cornell, 4 Id., 220 ; Hovey v. Rubber Tip Co., 50 N. Y., 335 ; Disbrow v. Garcia, 52 N. Y, 654). The case of Andrews v. Glenville Woolen Co., 50 N. Y, 287, is an exceptional one where the original motion to dissolve the injunction “was not denied on the merits, nor for irregularity in making the motion, but because the
I am, therefore, of the opinion that the allowance-by the judge of the taxable costs and extra allowance-made on the final judgment, and already paid, as part-of the damages contemplated by the provisions of the-undertaking was error, and that the damages reported by the referee are not to be in any respect, for any of the causes stated, diminished or reduced.
The order should in this respect be reversed, and au order made confirming the referee’s report; but I concur in the judge’s opinion that no final judgment should be entered upon the report, but leave should be given, to prosecute the undertaking.
Labbemobe, J., concurred.