Kane v. Harris

277 A.D.2d 895

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 1950
• Status: Published

Opinion

In a proceeding to ascertain damage incurred by reason of the granting of an injunction, order confirming the Official Referee’s report reversed on the law, without costs, the motion denied, without costs, and -the matter remitted to Special Term for new hearing on the issue of damages. For the purposes of the new hearing the findings of the Official Referee are reversed. Assuming that the circumstances warranted continuance of operation for the month of June, 1948, by respondent in Brooklyn, the loss, if any, suffered by respondent as the result of the injunction was not shown by competent proof. This ordinarily would consist of cost of operation minus reasonable value of product, or, if .sold, the price thereof, so as to fix the actual loss of respondent. Mere proof of volume of production is meaningless and, even in that respect, the proof, particularly as to dollar value, was inadequate. So-called duplication of facilities is not compensable. There is no proof that respondent duplicated these facilities. Instead, a different corporation with such facilities was awaiting removal of the business of respondent so as to take it over. This proceeding is not concerned with the loss of any corporation other than that of respondent. Fixation of attorneys’ fees must await the termination of the proceeding so that the value of services may be properly appraised. Carswell,- Acting P. J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.