Hyperlawhypertext legal database Hovey v. Rubber Tip Pencil Co. 38 N.Y. Super. Ct. 428

← Cases

Hovey v. Rubber Tip Pencil Co.

38 N.Y. Super. Ct. 428 6 Jones & S. 428 Court N.Y. Super. Ct. Decision date 1874-12-09 English

Delivered by Speir, J.

Contents

Majority

p. 428
SAMUEL D. HOVEY, et al., Plaintiffs and Appellants, v. THE RUBBER TIP PENCIL COMPANY, Defendant and Respondent.
Before Monell, Ch. J., Sedgwick and Speir, JJ.
Decided December 9, 1874.

Headnote

BOND IN CASE OP INJUNCTION.
No greater sum than that mentioned as a penalty in a bond given upon the issuing of an injunction, can be recovered in an action, or in proceedings on motion against the sureties.
In the case at bar, eight hundred and twenty dollars and fifty-seven cents, was the amount of damages sustained. The court directed the sureties to pay five hundred dollars of the damages, and one hundred and thirty-five dollars costs of the motion, reference, &c., for the ascertainment of the damages, and that the defendant pay the balance.
Held, That the sureties could not be compelled to pay any sum beyond or in excess of the five hundred dollars named as a penalty in the bond.
Appeal from an order made at special term, confirming the report of the referee to whom it was referred, to ascertain and report the damages sustained by the defendants, by reason of the inj unction issued herein, to which it had been finally decided by the court that plaintiffs were not entitled, and overruling plaintiffs’ exceptions thereto. thereto.................
The report was in all things confirmed, and an order entered, directing the sureties on the bond to pay to the defendant the sum of six hundred and twenty-five dollars, and directing a judgment to be entered against the plaintiffs for the deficiency. The plaintiffs appealed from this order.
p. 429
Ambrose C. Monell, for appellants.
John S. Washburn, for respondent.

The undertaking upon the issuing the order of injunction was executed by the sureties alone, and not by the plaintiffs. By its terms the sureties “ undertook in the sum of five hundred dollars, that the said plaintiffs will pay to the defendant so enjoined, such damages, not exceeding the sum mentioned, as he may sustain by reason of the said injunction,” &c.

The court below decided that the obligors who executed the said undertaking pay to the defendant or his attorney, on demand, the whole amount of said damages, the sum of five hundred dollars being the amount of said damages specified in their said undertaking, together with the further sum of one hundred and twenty-five dollars, expenses of said reference, and also ten dollars costs of the motion, amounting in all to the sum of six hundred and thirty-five dollars, and that the defendant have leave, and permission was granted to prosecute said undertaking in case the said obligors shall fail to pay said sum on demand.

The question is presented whether the obligors can be forced to pay, beyond the penalty of the bond, the further sum of one hundred and twenty-five dollars, being - expenses of the reference, and the ten dollars costs of the motion, making in all fhe sum of six hundred and thirty-five dollars, while their undertaking is limited to a sum not exceeding five hundred dollars.

By the force and effect of their contract, the obligors are limited to .the-extent, of .their., engagement, for by their undertaking they engaged that the principal, who obtained the order of injunction, would pay to the parties enjoined damages not exceeding the sum of five hundred dollars, as they might sustain by reason of. the injunction, if the court should finally decide their

p. 430
principal was not entitled to it. “ Such damage to be ascertained by a reference, or otherwise as the court should direct.” The same legal obligation which binds them to answer to the extent of five hundred dollars in the contingency named, protects them from paying a larger sum when the contingency has taken place. I am constrained to say that in any view of the defendant’s rights, they can not recover anything beyond the amount specified in the penal part of the bond. The cases cited by the respondents (Methodist Church v. Barker, 18 N. Y. 463 ; Patterson v. Bloomer, 7 Abb. N. S. 376; Lavett v. Dabney, 40 How. Pr. 277 ), do not present the precise question. In none of them does-it appear that the amount in which the obligors were sought to be held exceeded their undertaking. Besides,, where the law clearly fixes the liability of a party, as it does when the measure of the obligation is by a certain sum named in his bond, reference to authorities is not necessary. Under the authority of the case of Lavett v. Dabney ( 40 How. 277 ), judgment against plaintiff should be reversed.

The order should be reversed, with costs to the appellant to abide the event.

Sedgwick, J., concurred.

Monell, Ch. J., took no part in the consideration or decision of the case.

Cases cited