Majority
p. 376PATTERSON against BLOOMER. Supreme Court, First District ; Special Term, Nov., 1869.
Headnote
Undertaking in Injunction Suit.—Attachment.The court may order a plaintiff in an injunction suit, on whose behalf the usual undertaking has been given, to pay the damages which, after final dissolution of the injunction, have been assessed by a referee, on notice to him; and if he refuses to pay, may enforce the payment by attachment.
Motion to punish as for contempt.
The action in which these proceedings were taken was brought by Charles Gr. Patterson against Elisha Bloomer.
After an injunction had been issued in this case, and the usual undertaking given (which the plaintiff did not sign), he discontinued. A reference was thereupon ordered to compute the defendant’s damages; The plaintiff had notice of and opposed the application, and also appeared on the reference, but filed no exceptions to the report. A motion for a “ final adjudication,” and for a confirmation of the report, was made, which was granted, and an order made June 23, 1868, “ that the plaintiff was not, and had not been, entitled to said injunction ; that the defendant’s damages caused thereby amounted to two thousand and sixty dollars ; and that he was entitled to recover that sum from the plaintiff and his sureties.”[1]
This order was served on the plaintiff’s attorneys July 1, 1868, and personal notice given him October 1,
p. 377I. Tire plaintiff cannot go behind the order of June 23, 1868, which adjudicates the defendant’s damages, and his right to recover them from him. (1.) Having had full notice of that order, and of all prior proceedings, his failure to appeal made it conclusive. (2.) The method of correcting error is by appeal, not by disobedience (People v. Sturtevant, 9 N. Y. [5 Seld.], 266.
1868, but no appeal was ever taken therefrom. A suit was subsequently commenced against the sureties.
The defendant now moved, on affidavits showing the above facts, and that service of a certified copy of this order had been made on the plaintiff, and a demand made by a person having written authority from the defendant, for an order that the plaintiff pay, or be punished as for a contempt.
George W. Wingate, for the defendant
II. The order was regular. (1.) The discontinuance by the plaintiff involved the concession that the injunction could not be maintained, and that the plaintiff was not entitled to it (Pacific Mail Steamship Co. v. Leuling, 7 Abb. Pr. N. S., 37, 40; Taaks v. Schmidt, 19 How. Pr., 414 ; Crockett v. Smith, 14 Abb. Pr., 62 ; Mutual Safety Ins. Co. v. Roberts, 4 Sandf. Ch., 592 ; Coates v. Coates, 1 Duer, 664 ; Carpenter v. Wright, 4 Bosw., 655 ; Cumberland Coal & Iron Co. v. Hoffman Steam Co., 39 Barb., 16 ; S. C., 15 Abb. Pr., 78 ). (2.) The fact that plaintiff did not sign the undertaking was immaterial. It is not the practice for a plaintiff to sign undertakings on injunction (Askins v. Hearn, 3 Abb. Pr., 188 ; Leffingwell v. Chave, 10 Id., 475, 476 ; Republic of Mexico v. De Arangoiz, 5 Duer, 640 ). The reference is provided by the Code, irrespective of the terms of the undertaking {Code, § 22). The plaintiff is liable as a wrong-doer in any event, and a bond having been given “ on his part ” (Code, § 222), prescribing a particular method of computing the damages, he cannot object thereto (Askins v. Hearn, 3 Abb. Pr., 188 ). ¡ (3.) The direction to pay was proper. Although, as against the sureties, a
p. 378new aciion should, perhaps, be brought, yet the liability of the plain (iff having been fully adjudicated, no fui ther proceedings were necessary, or should be required. The Code contemplates that these damages should be fixed and paid in a summary proceeding in the original action, making a distinction between these ■ and other cases of damages on undertakings (Compare Code, § 222, with Id., §§ 182, 209, 230, 334). III. The court has jurisdiction to enforce the order 'by proceedings for contempt (3 Rev. Stat., 849, et seq. , 1 Crary on Special Pro., 172, et seq.). I. The plaintiff, not having signed the undertaking, is not liable for these damages. II. The order of reference was irregular. III. The court has no jurisdiction to proceed as for a contempt.
Dudley Field, for the plaintiff.
The court may order the plaintiff to pay the damages assessed, and, if he refuses, may enforce the payment thereof by attachment. The report having been confirmed, in a proceeding to which the plaintiff was a party, and no appeal having been taken by him, the same is conclusive upon him.
The defendant may have an order directing the payment of the money within thirty days after service oi notice of this order, or, in default, that an attachment issue.