Kelley v. McMahon

HaRdin, J.: By the undertaking given upon obtaining the injunction it was stipulated that‘plaintiff should pay such damages as defendant may [349] sustain by reason of such injunction, “if the court shall finally decide that the said ¡plaintiff is not entitled thereto.” A determination that the plaintiff was not entitled to the injunction has not been made by the court or referee. To guard against the implication which might follow from general words dismissing the complaint, as in Pacific Mail Steamship Company v. Leuling (7 Abb. [N. S.], 37), the referee inserted in his report words which state-in terms that he had not passed upon the plaintiff’s right to an injunction. These words, or their equivalent, are found in the judgment. It thus expressly appears that it never had been determined by the referee or the court that the plaintiff is or was not entitled to-the injunction. Vanderbilt v. Schreyer (28 Hun, 63),does not apply,, as in that case there had been an order dissolving the injunction and the final order of dismissal or discontinuance was absolute, and when entered the order dissolving the injunction became “ operative as a final decision of the court that the plaintiff was not entitled thereto.” Because there is no final decision of the court that the plaintiff was not entitled to the injunction, -there was no breach' of the undertaking shown, and therefore the Special Term properly refused an order of reference to ascertain the damages which the defendant alleged he had sustained. (Palmer v. Foley, 71 N. Y., 106; Johnson v. Elwood, 82 id., 364; Code of Civil Pro., § 620.) This was an equity action, and the court had power to- dismiss-the complaint in part and to retain it in part for the purpose of considering at a later stage parts of the case- not then passed upon. It could have expressly reserved the questions relating to the-injunction. We incline to the opinion that the court having, by its; reference, omitted to pass upon that branch of the case relating to-the right to an injunction, the defendant might have applied for an order to compel the referee to pass upon that question, or might, have excepted- to his refusal to so- pass upon the question, and upon a case presenting the proper exceptions, had a review of the refusal of the referee and a reversal of his decision. But instead, the-defendant acquiesced in the course pursued by the referee,, and contented himself with just such a judgment as the referee directed. It was not within the power of the Special Term, -when the order of reference was asked for to alter or vary the judgment entered, or the decision of the referee, or to, determine- that the plaintiff wa& [350] not entitled to the injunction. (Stevens v. Veriane, 2 Lans., 96; McLean v. Stewart, 14 Hun, 477.) The order should be affirmed, with ten dollars costs and disbursements. Smith, P. J., and Barker, J., concurred. Order affirmed, with ten dollars costs and disbursements