Rees v. United States Oxygen Co. — 155 N.Y.S. 163

Majority

p. 163

REES et al. v. UNITED STATES OXYGEN CO.

(No. 7744.)

(Supreme Court, Appellate Division, First Department.

October 15, 1915.)

Headnote

Injunction ©=>252—Bond—Damages—Deduction of Costs.

Where defendant had sustained damages from an injunction to the amount of the injunction bond, it was error to deduct therefrom, in assessing such damages, the taxable costs which had been paid by plaintiffs to defendant.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 586-598; Dec. Dig. ©=^252.]

<g=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Special Term, New York County.

Action Jay William A. Rees and others against the United States Oxygen Company. From an order denying in part a motion for an order assessing damages sustained by defendant by reason of an injunction, defendant appeals. Modified.

See, also, 162 App. Div. 901 , 906, 146 N. Y. Supp. 1109 .

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGH-LIN, CLARKE, and SCOTT, JJ.

p. 164

Alexander S. Bacon, of New York City, for appellant.

Marcus E. Joffe, of New York City, for respondents.

The question as to tire amount of damages having been submitted to the Special Term, that court found that the defendant had sustained damages tO' the amount of the undértaking. The court deducted from that, however, the amount of taxable costs which had been paid by the plaintiffs to the defendant. Such a deduction seems to> be entirely unwarranted. Brooks v. Racich Asbestos Mfg. Co., 137 App. Div. 280 , 121 N. Y. Supp. 850 .

The order must therefore be modified, by fixing the amount to be paid by the surety on the undertaking at the sum of $250, and, as thus modified, affirmed, with $10 costs and disbursements to the appellant.