Fuller v. American Surety Co.

Per Curiam. As it appears that the plaintiffs are entitled to some damages and as there is no other triable issue, the question of the amount of damages, pursuant to rule 113 of the Rules of Civil Practice, should be determined by assessment and the motion for summary judgment should have been granted. Sections 894-896 of the Civil Practice Act, which provide for the assessment of damages by reason of an injunction by motion, do not appear to outline an exclusive method of procedure, and the right to a common-law action on the undertaking, therefore, subsists. (See Carmody N. Y. Prac. [1932 ed.] vol. 7, § 279.) In the present case plaintiffs would be limited to the amount of loss directly flowing from the continuance of the injunction restraining the sale of the stock during the pendency of the appeal. We see no reason why all questions in relation to such damages may not be determined on an assessment. Order reversed, with ten dollars costs and disbursements, and motion granted. All concur; present, Lydon, Callahan and Shientag, JJ.