Johnson v. . Elwood

Miller, J. This appeal arises upon an order affirming an order, made on motion of the administratrix of the original defendant, granting a reference to ascertain the damages sustained by reason of an injunction granted restraining such defendant, who is deceased, from entering upon certain lots of land in the county of Delaware, and from cutting down timber or otherwise injuring said lots, or intermeddling with the same. The injunction was dissolved by stipulation upon the termination of another suit involving the title to the premises, and after this, and in 1875, the defendant died. In 1877 an order was made, on motion of the defendant’s administratrix, that the plaintiff elect and give notice whether he will continue the action against her by a supplemental complaint. A motion was then made that the complaint be dismissed, and an order was granted that the action be discontinued without costs to either party. Judgment of discontinuance was entered accordingly and the order of reference granted from which this appeal is taken. The court is asked to review some other orders made in the action, but we think that as no appeal is taken *365 from such orders, we must be confined to a consideration of the one which is now before us. The plaintiff claims that no order of reference could be made in this case, for the reason that the action abated in consequence of the death of the defendant before any trial, and that the cause of action did not survive. It is evident that if the plaintiff had succeeded in maintaining a right to the injunction order after the defendant’s death, no judgment could have been entered against the defendant; nor is it apparent in what manner his representatives could have been restrained in this action. The acts of the defendant, in interfering with the lots in question, were of a character purely personal to himself, and the restraint upon him by injunction was at an end upon his decease, and the maxim, actio personalis moritur cum persona applies. As the action became abated and did not survive upon the death of the defendant against his heirs or representatives, there was no authority in the court to direct its discontinuance or to make any other order than that it be deemed abated by such death. It follows, from what has already been remarked, that the order of reference to ascertain the damages cannot be sustained without a violation of a well-settled and sound rule of law, and it would, therefore, be impossible to continue the action for any purpose. ' ■ , There is another difficulty in upholding the order of reference in this case. The undertaking provides for the payment of damages in the event, only that the court shall finally decide that the plaintiff was not entitled to the injunction. There has been no breach of the condition in this respect, and no final determination which warrants a reference to compute the amount of damages. In Palmer v. Foley (71 N. Y. 106), the defendant had consented to a discontinuance, and that an order to that effect might be entered, which was done; and it was held that this was not equivalent to a final decision of the court and there was no breach and no right of action, and that an order of reference to ascertain damages was improperly granted. It was laid down that there was no judicial determination or opinion given upon the merits of the action, or the right of *366 the plaintiff in the action to the injunction at the time it was granted, and that it was never finally determined by a judicial decision. An amicable and voluntary agreement to discontinue was not enough. . This case is directly in point, and the granting of the order discontinuing the action because the plaintiff failed to 'proceed, as required by a prior order, is not sufficient to establish that there was a decision. (Musgrave v. Sherwood, 76 N. Y. 194; Benedict v. Benedict, id. 600.) It does not alter the case because the injunction was dissolved, or that in another action the court held that the plaintiff has no title to the premises; and it is a sufficient answer to the application, to ascertain the damages, to say that there has been no determination in this case as to the right of the plaintiff to the injunction originally. For the reasons stated, the orders of the Special and General Terms must be reversed. All concur. Folger, Oh. J., and Rapallo, J., concurring on first ground. Orders reversed.