p. 261Held, that the demurrer was properly overruled, as it did not appear upon the face of the complaint that there were any persons, other than the present plaintiffs, parties to the original action or served with process therein or enjoined thereby, or who, though not enjoined, sustained any damage by reason of the injunction.
Qumre, whether the undertaking created an obligation jointly “ to the defendants and parties so enjoined.”
Appeal by the defendants, James W. Godfrey and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of December, 1896, upon the decision of the court rendered after a trial at the New York Special Term overruling the defendants’ demurrer to the complaint, and also from the decision and order dated the 8th day of December, 1896, upon which said judgment was entered.
The action was brought against two sureties who executed, an undertaking required by an order continuing an "injunction restraining the plaintiffs "in the present (the defendants in the injunction) suit from enforcing a claim against one William Noble.
John L. White, for the appellants.
JE. V. Thornall, for the respondents.
The only question presented on this appeal is whether it appears upon the face of the complaint that there is a defect of parties plaintiff. It is only where an objection thus appears that it can be taken by demurrer. (Code Civ. Proc. § 488.) Where such objection does not appear upon the face of the complaint, it must be taken by answer. (Code Civ. Proc. § 498.) A copy , of the undertaking sued ' on is annexed to the complaint. Thereby the defendants in this present action do jointly and severally undertake that the plaintiffs will pay to the defendants and parties so enjoined such damages, not exceeding the sum of $250, as they may sustain by reason of the injunction. .
Even assuming, which, however, we do not decide, that this is an obligation jointly to the defendants and parties enjoined, if it does not appear upon the face of the complaint that there were others
p. 262than the plaintiffs in this action who were the defendants and parties enjoined, the demurrer was not well taken. The complaint alleges the commencement of the action in which the undertaking was given, and in which it is stated that, the plaintiffs in this action and others were the defendants. It is also .alleged that an injunction was granted restraining these plaintiffs from in anywise collecting, receiving, demanding, or attempting to collect, sue for or enforce the payment to them of any money, notes or other things of value from one William Noble, one of the defendants in that action; that, subsequently, as required by an order of the court, the plaintiff in the said action was required to give a new undertaking, and that the. undertaking in suit was given under such order, which undertaking was duly approved by one of the justices of this court and filed in the office of' the clerk; that, subsequently, the temporary injunction was vacated by the General Term of the Supreme Court, and that by subsequent proceedings the amount of the damages .sustained by these plaintiffs was fixed by an order of the court at the sum of $500.
We think it quite clear that there is no allegation in this complaint from which it appears that any other than the plaintiffs were necessary parties, plaintiff in this action. The only injunction alleged in'the complaint is an injunction restraining these plaintiffs from prosecuting their claims against Noble. There is no allegation, that any other injunction was granted; that any other defendants in the action in which the injunction was granted were served with process, and it does not appear that there were any persons other than the plaintiffs either enjoined in the original action or who, though not enjoined, sustained any damage by reason of the injunction.
By section 448 of the Code of Civil Procedure it is provided that those who are united in interest must be joined as plaintiffs or defendants. But, as it does not appear upon the face of the. complaint that there is any one entitled to recover anything upon this undertaking except the plaintiffs, the objection must be taken by answer. The judgment was, therefore, right and should be affirmed, with costs.
There is also an appeal from the order or decision upon which the interlocutory judgment was entered. As no such appeal is
p. 263allowed by the Code, the appeal from such order or decision must be dismissed.
Van Brunt, P. J., Williams, Patterson and O’Brien, JJ., concurred.
Judgment affirmed, with costs, and appeal from order dismissed.