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Ten Eyck v. Sayers

27 N.Y.S. 588 Court N.Y. Gen. Term Decision date 1894-02-12 English

Delivered by GULLEY, J.

Contents

Majority

p. 588
(76 Hun, 37.)
TEN EYCK v. SAYERS et al.
(Supreme Court, General Term, Second Department
February 12, 1894.)

Headnote

Injunction—Damages—Attorney’s Fees.
Where defendants obtain a dissolution of an injunction awarded against them, they are entitled to recover, on the undertaking, reasonable counsel fees and expenses.
Appeal from special term, Orange county.
Action by Coe H. Ten Eyck against George W. Sayers and others for an injunction. From an order assessing damages under an undertaking given before plaintiff in procuring preliminary injunction, defendants appeal. Modified.
Argued before DYKMAY, PRATT, and GULLEY, JJ.
Bacon & Merritt and George W. McElroy, for appellants.
James Parker, for respondent.

This is an appeal by defendants from an order of the special term assessing their damages by reason of an injunction at $94. The injunction restrained defendant from preventing the closing and opening of a swing bridge on a public highway. This necessitated the employment of a man to open and close the bridge.

p. 589
The wages of the bridge tender during the continuance of the injunction, $28, should have been allowed.

The defendants having been successful in obtaining a dissolution of the injunction, their reasonable counsel fees and expenses for that purpose were properly recovered on the undertaking. Hovey v. Rubber-Tip Co., 50 N. Y. 335 ; Andrews v. Wool Co. Id. 282. In the fact that they succeeded in the motion to dissolve, lies the difference between this case and that of Randall v. Carpenter, 88 N. Y. 293 . The special term having allowed such damages, the only question is whether it fixed the amount at too small a sum. We think it did. The action was important. The case involved substantial questions of law and fact, and the affidavits were voluminous. On the evidence, an allowance of $100 for the services of Mr. Bacon in preparing for and arguing the motion to continue the injunction would be entirely moderate. An allowance of $25 should also be made for similar services by his associate. The other charges of counsel seem fairly to relate to the general conduct of the action. The order appealed from should be modified by increasing the amount awarded defendants by $103, with $10 costs and disbursements to appellants.

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