Hovey v. . the Rubber-Tip Pencil Co.

50 N.Y. 335, 1872 N.Y. LEXIS 425

Opinion

Church, Oh. J.

No motion was made to dissolve the injunction, nor does it appear that any expenses were incurred in consequence of it. The expenses proved were the expenses and counsel fees in the management and preparation of the case for trial, and the trial of the same, and no evidence was produced to show that any part of the sum was expended by reason of the temporary injunction, nor but that the same amount would have been incurred if no temporary injunction had been issued.

The principles laid down at the General and Special Term accord with the recent decision of this court in Andrews v. The Glenville Woolen Company (ante, p. 282), that, in order to recover as damages counsel fees, or any part of them, for the trial of an action in which a temporary injunction was issued, it must appear in some way that such expenses were incurred by reason of such injunction. In that case a motion had been made to dissolve the injunction, which was denied, upon the ground that as the motion involved the whole merits of the action, which was brought to secure a permanent injunction, it was more appropriate that it should be determined upon a trial. The defendant was therefore compelled to go to trial to secure a decision that the party was not entitled to the injunction in order to recover the damages which he had sustained in endeavoring to procure a dissolution, and this court held that a counsel fee for the trial of the action was proper. The facts proved in this case do not bring it within the principle decided in that case. A party is entitled to damages, not only for all expenses which he has incurred for fees and for legal services in removing the temporary injunction, hut also any damages to his business, or otherwise necessarily resulting from it.

As none was proved in this case the order must be affirmed.

All concur.

Order affirmed.