Griffing v. Slate & Gardiner — 5 How. Pr. 205

Majority

p. 205

SUPREME COURT.

Griffing agt. Slate and Gardiner.

Headnote

A report of a referee made upon the question of damages consequent upon the dissolving of an injunction, must be confirmed (on motion at special term) before the court can entertain an application to prosecute the undertaking given upon the issuing of the injunction.

In all cases where a report is required for the purpose of enabling the court to make some discretionary order or decree thereon, it requires confirmation.

New York Special Term,

July 1850.

The defendants had obtained a reference to ascertain the damages which they had sustained by reason of an injunction which had been dissolved. Upon the referee’s report they now moved for leave to prosecute the undertaking which had been given on suing out the injunction.

For the pliantiff it was objected that the report had never been confirmed, no order of course to confirm it had been entered, nor any motion to that effect made, and that there were objections to the report which the plaintiff desired to present to the court.

A report of a referee does not require confirmation where it is not intended to be made the foundation of any future discretionary act of the court. This rule has some exceptions which it is unnecessary to mention here, because in no respect affecting this case.

But where a report is required for the purpose of enabling the court to make some discretionary order or some decree thereon, whether the order directing the reference be made upon decree or upon an interlocutory application, the report requires confirmation before it is adopted as the foundation of such future order or decree.

The report in this case is one which requires confirmation, for upon it the court is to pronounce its judgment as to the damages which the defendants have sustained by reason of the injunction and is to determine whether the injunction bond shall be ordered to be prosecuted (2 Danl Pr. 1486; Otley vs. Pensam, 1 Hare,

p. 206

324; Empringham vs. Short, 11 Sim. 78; 1 Barb. Ch. Pr. 550), The mode of obtaining confirmation is not the same in all cases.

If the reference be made on the hearing or upon further directions, there the practice is upon filing the report to enter an order of course, to confirm the report, unless cause to the contrary be shown in eight days after service of notice of that order.

But where the report is the consequence of orders made On motion or petition, the confirmation can only be by special motion, or on petition.

The report in this case is one of the1 latter kind, and can be confirmed only on special motion. That tiot having been done in this case, the plaintiff can not have his motion to prosecute the bond. He must first get his report confirmed on a special, motion for that purpose. Motion denied with costs.