Carroll v. Kenin — 25 A.D.2d 743

Majority

p. 743

Joseph Carroll, Appellant, v. Herman Kenin, as President of the American Federation of Musicians of the United States and Canada, et al., Respondents.

-Judgment awarding defendants $500 for damages sustained as a result of a temporary restraining order, modified, on the law and on the facts, to the extent of increasing the award to $1,000, and, -as so modified, affirmed, with $50 costs and disbursements to defendants-respondents. It is not disputed that the value of the services rendered by defendants’ attorneys in opposing the preliminary injunction was in excess of $1,000. The preliminary injunction was denied and the ex parte restraining order contained in the order to show cause therefor vacated. Defendants are entitled to recover the reasonable value of legal services resulting in vacatur of the restraining order and the denial of the preliminary injunction. (Sargent v. St. Mary’s Orphan Boys’ Asylum, 190 N. Y. 394 .)

Concur — Botein, P. J., Rabin and MeNally, JJ.;

dissents in part in the following memorandum: I concur in the result except as to costs. The fact is that though defendants could have proceeded on the theory outlined in tbs memorandum, in fact they did not but instead relied upon a supposed absoluta right to the face amount

Dissent

p. 744

of the bond. Had defendants proceeded properly, Special Term might well have decided in their favor and rendered this appeal unnecessary. I do not believe that costs should be awarded under these circumstances.

Cases cited

Sargent v. St. Mary's Orphan Boys' Asylum 190 N. Y. 394 N.Y. 1907-12-20 p. 743