In re Reed

125 A.D. 884, 110 N.Y.S. 834, 1908 N.Y. App. Div. LEXIS 2924

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1908
• Status: Published

Opinion

Scott, J.:

The defendant appeals from an order denying his motion for a reference to ascertain the damages suffered by reason of an injunction. An action was brought by one Lew Dockstader against the appellant. A preliminary injunction was granted restraining the appellant from doing certain things until “the hearing and decision of the Court upon this application.” The injunction order contained the usual directions to the appellant to show cause why the injunction should not be continued during the pendency of the action. Before the return day the appellant obtained ex parte a modification of the injunction. On argument the injunction as originally granted was continued pendente lite, but its operation was suspended pending an appeal. Upon appeal the order was reversed, (see Bockstader v. Reed, 121 App. Div. 846) and thereupon the plaintiff by an ex parte order discontinued the action. This was equivalent to a final determination that the plaintiff had not been entitled to the injunction, and the appellant thereupon became entitled to such damages as he had suffered by reason of it. It is true that he had not been in fact restrained from doing anything, but he was necessarily put to expense by reason of the issuance of the injunction and in the ultimately successful efforts to vacate it. These expenses certainly were damages suffered in consequence of the injunction. (Perlman v. Bernstein, 93 App. Div. 335; 179 N. Y. 531.)

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, Laughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.