Harrison v. Harrison — 26 N.Y.S. 965

Majority

p. 965

HARRISON et al. v. HARRISON et al.

(Supreme Court, General Term, First Department.

January 12, 1894.)

Headnote

Injunction—Damages.

Where defendant recovers judgment in an action in which an injunction was granted, defendant can recover only the damages sustained by reason of the injunction, and not all the costs and expenses incurred in defending the action.

Appeal from special term, New York county.

Action by Eliza M. Harrison and others, as executors, etc., against William H. Harrison and others. Judgment having been rendered in favor of defendants, a reference was granted to determine the damages sustained by defendants by reason of the granting of an injunction pending the action, and from an order confirming the report of the referee plaintiffs appeal.

Modified.

• Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.

Daniel Daly, for appellants.

Michael A. Quinlan, for respondents.

This proceeding was conducted on the erroneous theory that because an injunction was granted pending the action, which resulted in favor of the defendants, therefore they were entitled to recover as damages all the costs and expenses incurred in defending the action; whereas they were only entitled to recover the damages sustained by reason of the granting of the injunction, which, so far as the evidence discloses, consisted of the expenses incurred in attempting to have it dissolved. But, as no objection was taken to the admission of the evidence offered, a reversal for that reason will not be had.

The referee has found that the total cost to the defendants of the action and of this proceeding, including the expense of the motion to vacate the injunction, was $200; but it appears that the defendants were awarded by the judgment, and their attorney has received -from the plaintiffs, $115, which sum the referee should have deducted from the total amount which he found had been incurred by the defendants in the action. Howell v. Miller, 5 N. Y. Law Bul. 88. The order appealed from should be so modified as to direct that the plaintiffs pay to the defendants the sum of $85, and, as so modified, affirmed, without costs.