Ten Eyck v. Sayers — 59 N.Y. St. Rep. 627

Majority

p. 627

Coe H. Ten Eyck, Resp’t, v. George W. Sayers et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed February 12, 1894.)

Headnote

Injunction—Damages.

Reasonable counsel fees and expenses in obtaining a dissolution of an injunction are properly recoverable on the undertaking.

Appeal from an order assessing damages under an undertaking, given by plaintiff in procuring a preliminary injunction.

Bacon & Merritt and George W. McElroy, for app’lts; James Parker, for resp’t.

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. 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

p. 628

for that purpose were properly recovered on the undertaking. Hovey v. Rubber-Tip Pencil Co., 50 N. Y., 335 ; Andrews v. Glenville Woolen 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.