p. 834(Supreme Court, Appellate Division, First Department.Headnote
Injunction—Liabilities on Undertaking to Procure—Damages.A preliminary injunction, granted to plaintiff against defendant, was continued pending the action; but its operation was suspended during an appeal. Upon appeal the order was reversed, and thereupon plaintiff, by an ex parte order, discontinued the action. Held, that this was equivalent to a final determination that plaintiff was not entitled to the injunction, and defendant became entitled, under the undertaking for the injunction, to compensation for the expenses he had been put to by reason of its issuance and in his efforts to vacate it, as damages suffered by reason of the injunction, though he had not in fact been restrained from doing anything.
Appeal from Special Term.
Action by Lew Dockstader against Gus Reed. From an order denying an application by defendant for a reference to ascertain damages suffered by reason of an injunction, under an undertaking, defendant appeals.
Reversed, and motion granted.
Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.Charles Goldzier, for appellant.
Henry J. Goldsmith, for respondent.
The defendant appeals from an order denying his motion for a reference to ascertain the damages suffered by reason
p. 835of an injunction; ■ An action was brought by one "Lew Dockstader against the appellant. A preliminary injunction was granted, restraining the appellant from doing certain things until “the hearing and decision of the court upon this application.” The injunction order contained the usual directions to the appellant to show cause why the injunction should not be continued during the pendency of the action. Before the return day the appellant obtained ex parte a modification of the injunction. On argument the injunction as originally granted was- continued pendente lite; but its operation was suspended pending an appeal. Upon appeal the order was reversed, and thereupon the plaintiff by an ex parte order discontinued the action.
This was equivalent to a. final determination that the plaintiff had not been entitled to the injunction, and the appellant thereupon became entitled to such damages as he had suffered by reason of it. It is true that he had not been in fact restrained from doing anything; but he was necessarily put to expense by reason of the issuance of the injunction, and in the ultimately successful efforts to vacate it., These expenses certainly were damages suffered in consequence of the injunction. Perlman v. Bernstein, 93 App. Div. 335 , 87 N. Y. Supp. 862 ; Id., 179 N. Y. 531 , 71 N. E. 1138 .
It follows that the order appealed front must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.