Delafield v. Commercial Telegram Co.

Headnote

1. Injunction; reference.to determine amount of damages.] A reference 1 to determine the amount of damages sustained by an injunction, which -has been dissolved, will not be granted after judgment dismissing the action without making any provision on the subject; nor will the case be reopened for the purpose of ordering a reference to ascertain the damages.

2. Forms.] Form of injunction against withholding telegraph ticker.

Appeal from order.

Tallmadge Delafield, Jr., a stockbroker, brought this action against the Commercial Telegram Company to enjoin the defendants from removing its printing telegraph instrument or ticker from plaintiff’s office and to restrain defendants from doing anything by which plaintiff, by

There was a contract between the parties, but after the commencement of action, plaintiff gave notice terminating the contract pursuant to its terms.

Thereafter, the injunction was vacated by the court.

The defendant then moved for and obtained leave to make a supplemental answer, and the supplemental answer put in showed the termination of the contract and the vacating of the injunction.

The order vacating the injunction was expressed to be “ without prejudice to any of the rights of the plaintiff on the trial of this action, and without deciding that the plaintiff was not originally entitled to the injunction herein.”

On the trial, the plaintiff brought on the action at the equity term, and his counsel, in opening the case, said that lie asked no relief, but claimed that having been compelled in self-defense to' terminate the contract, the plaintiff should not be charged with- costs of the action ; but the question should be determined according to the situation of the parties at the time the action was commenced.

The court, Larremoee, Oh. J., held that the action must be dismissed with costs, but declined to insert in the decision' a provision that it should be without prejudice to the right of the plaintiff to insist thereafter that he was originally entitled to the injunction.

The defendant thereupon entered judgment, dismissing the complaint with costs, and thereafter moved that the cause be re-opened for further proof upon, or a reference be ordered to hear and determine, the question whether the

plaintiff was entitled to the injunction order bearing date the 23d day of March, 1885, and obtained by him at the commencement of this action, and that the entry of any decree or judgment in this action should be stayed until the coming in of such report, and that the final decree or judgment to be entered should contain a recital in conformity with any report that may be made on such reference, and for other or further relief.

The motion was denied, and the defendant appealed to the general term.