Newton v. Russell

Learned, P. J.: The plaintiffs obtained an injunction pendente lite, which restrained the defendant from interfering with a boom across a certain river. The order required the defendant to show cause as a certain time and place why this injunction should not be continued until the final decree. At the time and place an order was made by Judge James that, on notice by the defendant, the plaintiffs should give an increased undertaking to secure damages; that till further order the injunction be continued; that defendant might give a five days’ notice of further hearing] on the order to show cause before J udge Landon. And the order continued, that “ if such notice is given and such security is given, the injunction hereby given shall be continued until the final decree herein.” If notice to file security were given and security was not filed the injunction was to be deemed vacated. The defendant gave notice and the increased undertaking was given. No motion was made before Judge Landon in regard to the injunction as provided for in the order. On the trial the defendant had judgment. The question here is, whether, as part of the damages on the undertaking, the defendant should have counsel fees of the trial. It is fairly to be understood from the order that the defendant had the election either to move for a hearing before Judge Landon on the order to show cause, or to demand further security and to have the injunction stand till final judgment. The defendant chose the latter course. The plaintiffs have no right to complain because the defendant made this choice. The result was that a trial of the action became necessary in order to dissolve the injunction. Judge James had decided on a hearing of both sides (though not on a full discussion of the merits of the injunction) that, if the plaintiffs would give the increased undertaking, the injunction should be continued until the final decree. “ A trial was therefore necessary, not merely to dispose of the issues but to get rid of the injunction.” (Andrews v. Glenville W. Co., 50 N. Y., 282.) The injunction was unlike that in Disbrow v. Garcia (52 N. Y., 654). There the injunction simply restrained the defendant from disposing of a bond during the pendency of the action. The defendant, therefore, might have sued upon the bond and collected it, notwithstanding the injunction. And the injunction did not [43] express any decision as to the merits of the case. In Hovey v. Rubber-Tip P. Co. (50 N. Y., 335) it does not appear what the injunction was; but the court approve Andrews v. Glenville W. Co. Now, in the present case, the injunction involved the merits; it forbade the defendant to do those acts, during the action, which the final judgment would have forbidden him to do, if it had been against him. Practically, the defendant recovered judgment when he began his action, and left the defendant to relieve himself from such judgment by a trial. The order appealed from should be affirmed, with ten dollars costs and printing disbursements. Bocees and Boardman, JJ., concurred. Order affirmed, with ten dollars costs and printing disbursements.