Patterson v. Bloomer

Ingraham, J. On the dissolution of an injunction the defendant obtained an order of reference to assess the damages on the undertaking. The undertaking was only signed by the sureties. The referee reported the amount of damages sustained, which report was confirmed, and it was decided that the defendant was entitled to recover the same of the plaintiff. The same not being paid on demand, the defendant entered judgment on the report. So far as the sureties are liable, I do not think a judgment against them would be regular, unless an action was commenced and summons served, or at least until notice had been given to them of the hearing before the referee (12 Abb. Pr., 189 ; 15 Id., 427). Nor do I see the propriety of entering a judgagainst the plaintiff. The defendant has two ways of enforcing a recovery on the undertaking,—one by an action, the other by a reference. In the first, he proceeds to judgment; in the other, he applies to the court for an order directing the payment of money, and enforces it in the same manner as other orders of a similar character. When the plaintiff has not signed the undertaking, there can be no propriety in entering a judgment against him, and the only proceeding against him would be by an order of the court, directing him to pay the damages. I see no way in which this judgment can be sustained. In granting the motion, I do not award costs, and the order must be without prejudice to any other proceedings the defendant may take, either by action on the undertaking, or on the report, or by proceeding by way of attachment. • The motion was granted upon these conditions.