Cunningham v. White

Monell, J. This action is upon an undertaking given by the defendants in behalf of the Dry Dock, East Broadway and Battery Bailroad Company, on obtaining an injunction in an action by such company against the mayor, &c., of New York, and Cunningham the plaintiff. The complaint alleged that in said action it was decided that said company was not entitled to the injunction. The defendants, in the “ second” paragraph of their answer, allege, in substance, that the undertaking, a copy of which is annexed to the complaint, was executed in a proposed action, in which the railroad company was' plaintiff, and the mayor, &e., of New York, said Cunningham and one Duffy were defendants; but “ that said proposed action was never actually commenced, and no injunction or injunction order was ever obtained or granted therein.” This allegation is sufficient in substance to constitute a defense. If the injunction in suit was, as alleged, given in an action never actually commenced, it became a nullity, and could not, without a fresh assent of the sureties, be used as a security or for the purpose of procuring an injunction in another or a different action. The fact alleged is issuable, and, therefore, not demurable. In the “third” paragraph of the answer the defendants deny that the court ever finally decided that the plaintiffs, [489] the railroad, company, was not entitled to the injunction; and they “ allege that, although the summons and complaint were personally served on the said Cunningham, he never-appeared in the action or answered the complaint; and that, as to him, the plaintiff (in said action) was and is entitled to an absolute judgment by default and an absolute injunction.” It is then further alleged “ that the said action was never-tried, but was discontinued by an order of the court, upon the consent of the attorneys for the respective parties.” The order of discontinuance further provided “ that the undertaking given on behalf of the plaintiff to obtain the injunction be and the same is hereby canceled.” The consent upon which the order of discontinuance was made did not include the defendant Cunningham; and as to him, therefore, it was inoperative, so far as it could be deemed to affect any right he then had. A plaintiff may, with or without the consent of the defendants, discontinue an action; but he cannot thereby, unless assented to by the defendants, deprive them of any rights which they then possessed. Cunningham had been served and had 'not appeared. He was not therefore entitled to notice of the application for leave to discontinue. Nevertheless, without notice, it was not in the power of the court to cancel the undertaking as to him, and thus shut him off from any claim for damages he might have under it. Although the discontinuance was without prejudice to any rights which Cunningham had acquired in the action, it was, nevertheless, a final adjudication of the action, and gave to Cunningham an immediate right of action upon the undertaking (Compenter agt. Wright, 4 Bosw., 655; Pacific Mail S. S. Co. agt. Leuling, 1 Abb. N. S., 37). It does not change the question of the sureties’ liability that, by reason of Cunningham’s failure to appear, the plaintiffs were entitled to an absolute in junction against him. It' is enough that they took no such judgment, and, by the [490] discontinuance of the action, are now precluded from such a judgment. I am of opinion, therefore, that the order canceling the undertaking was a nullity; and that, upon entering the order of discontinuance, Cunningham had an immediate right of action upon the undertaking. The demurrer must be sustained as to the defense con- . tained in the “'third” paragraph of the answer. In the “fifth” paragraph of the answer the defendants allege that, prior to the commencement of this action, the railroad company paid to the mayor, &e., defendants in that action, the sum of eighty dollars in full satisfaction and discharge of the damages mentioned in the complaint in this action, and of all damages sustained by the defendants in that action by reason of the injunction therein. The undertaking was to pay the party enjoined such damages as he might sustain by reason of the injunction. Cunningham was the real, if not-the only party to the action affected by the injunction. He was the contractor of the corporation, and wa& stopped in the prosecution of his work. The corporation was not a necessary, and hardly a proper j)arty. The interests of the defendants were diverse and separate, and, therefore, their rights, under the security, were wholly separate. An undertaking, although joint as to the obligors or sureties (Perry agt. Chester, 12 Abb. N. S., 131), is not necessarily joint as to the persons to or for whose benefit it is given. If their interests are joint, then the right of action upon the undertaking would also be joint. But when such interests are several the right of action is also several. There was no union of interest between the corporation and Cunningham. Therefore, upon this undertaking, either could maintain an action in his own behalf. From this, it follows that any payment to the corporation, although of damages by reason of the injunction, was not a [491] satisfaction of, nor did it in any manner affect, the separate rights of Cunningham. The facts, therefore, as stated in the “ fifth ” paragraph of the answer, do not constitute a defense. In' the “ sixth ” paragraph of their answer the defendants allege that the undertaking was not for the benefit of the plaintiff, individually, “but jointly with the mayor, &c., and the said Duffy, who are necessary parties plaintiff in this action.” The insufficiency of this defense follows, from what' is said of the “fifth” paragraph. The obligation being several as to the parties enjoined, either may maintain a separate action. Another answer to this portion of the answer is that the alleged non-joinder of parties was and is apparent on the face of the complaint. By not demurring the objection is waived •(Code, § 147). •The demurrer must be overruled as to the “second” paragraph, and allowed as to the “third,” “fifth” and “sixth” paragraphs of the answer. 3STo costs to either party, and the defendants to have leave to amend, and the plaintiffs to reply as they shall be advised.