Brooklyn Consolidated Lumber Corp. v. City Plastering Co.

Order modified by striking therefrom the last paragraph, which directs a reference to assess damages, and as thus modified affirmed, without costs, without prejudice to the prosecution of an action by defendant City Plastering Co., Inc., if it be so advised, to enforce its common-law rights, if any. The order granting the injunction contained no provision for an undertaking. The right to assess damages on a reference under section 894 of the Civil Practice Act arises only when an undertaking has been required as a condition to the granting of injunctive relief, and then such an assessment may not exceed the amount of the undertaking furnished. Where no undertaking is required the rights of the parties are determined Toy the common law. At common law, where injunctive relief was erroneously obtained by one acting in good faith, there could be no assessment of damages. Where he acted in bad faith and under circumstances amounting to malicious prosecution, redress could be had in an action for damages. (Lawton v. Green, 64 N. Y. 326, 330; Bedell Co. v. Harris, 228 App. Div. 529, 532; Civ. Prac. Act, § 894.) Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.