Musgrave v. . Sherwood

New York Court of Appeals

Musgrave v. . Sherwood

76 N.Y. 194, 1879 N.Y. LEXIS 483

CourtNew York Court of Appeals

DecidedFebruary 11, 1879

StatusPublished

Cited by15 cases

This text of 76 N.Y. 194 (Musgrave v. . Sherwood) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Musgrave v. . Sherwood, 76 N.Y. 194, 1879 N.Y. LEXIS 483 (N.Y. 1879).

Pincite

Opinion

Per Curiam.

Each of the undertakings given by the plaintiff provided for the payment to the defendant of such damages as he might sustain by reason of the injunction, if the court should finally decide that the plaintiff Avas not entitled thereto.

The decision of the Special Term, if alloAved to stand, Avas a determination of the case. But Avhen an appeal was perfected by the execution of the bond required by the Code, the final decision Avas postponed until that appeal Avas decided. In the meantime, the defendant has no claim to an order of reference to assess the damages. The plaintiff having appealed, and executed the proper undertaking, it cannot be claimed that there has been a final determination of the cause. (Palmer v. Foley, 71 N. Y., 106.) It still remains undetermined, and the final result cannot be known until the appellate tribunal has passed upon the case.

None of the authorities cited by the appellant’s counsel hold that when an appeal has been taken, an order of reference may be entered, to assess damages arising from an injunction. (Methodist Churches of New York v. Barker, 18 N. Y., 463; Parke v. Musgrave, 6 Hun, 223; Lawton v. Green, 64 N. Y., 326; Disbrow v. Garcia, 52 id., 654.) Cases may arise where it would be the duty of the court to order a reference. But any general rule different from that stated Avould lead to great inconvenience. A reference ordered to ascertain the amount of damages Avould create large expense, and be of no avail, if the judgment was finally reversed. It Avould, indeed, be somewhat unusual, under ordinary circumstances, that the execution of the judgment should be stayed and, at the same time, a *196 proceeding going on for the assessment of damages, which perhaps .might be collected pending the appeal, or if not collected, and the judgment was reversed, the proceeding would be of no avail.

The defendant is secured by the undertakings given before the injunction, and usually can suffer no loss by waiting until the decision of the case, before proceeding to assess his damages.

The Special Term was right in denying the motion; and the order appealed from must be affirmed, with costs.

All concur.

Order affirmed.

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Per Curiam.

Each of the undertakings given by the plaintiff provided for the payment to the defendant of such damages as he might sustain by reason of the injunction, if the court should finally decide that the plaintiff Avas not entitled thereto.

The decision of the Special Term, if alloAved to stand, Avas a determination of the case. But Avhen an appeal was perfected by the execution of the bond required by the Code, the final decision Avas postponed until that appeal Avas decided. In the meantime, the defendant has no claim to an order of reference to assess the damages. The plaintiff having appealed, and executed the proper undertaking, it cannot be claimed that there has been a final determination of the cause. (Palmer v. Foley, 71 N. Y., 106.) It still remains undetermined, and the final result cannot be known until the appellate tribunal has passed upon the case.

None of the authorities cited by the appellant’s counsel hold that when an appeal has been taken, an order of reference may be entered, to assess damages arising from an injunction. (Methodist Churches of New York v. Barker, 18 N. Y., 463; Parke v. Musgrave, 6 Hun, 223; Lawton v. Green, 64 N. Y., 326; Disbrow v. Garcia, 52 id., 654.) Cases may arise where it would be the duty of the court to order a reference. But any general rule different from that stated Avould lead to great inconvenience. A reference ordered to ascertain the amount of damages Avould create large expense, and be of no avail, if the judgment was finally reversed. It Avould, indeed, be somewhat unusual, under ordinary circumstances, that the execution of the judgment should be stayed and, at the same time, a *196 proceeding going on for the assessment of damages, which perhaps .might be collected pending the appeal, or if not collected, and the judgment was reversed, the proceeding would be of no avail.

The defendant is secured by the undertakings given before the injunction, and usually can suffer no loss by waiting until the decision of the case, before proceeding to assess his damages.

The Special Term was right in denying the motion; and the order appealed from must be affirmed, with costs.

All concur.

Order affirmed.

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76 N.Y. 194, 1879 N.Y. LEXIS 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/musgrave-v-sherwood-ny-1879.

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