Randall v. . Carpenter

88 N.Y. 293, 1882 N.Y. LEXIS 104

Opinion

Danforth, J.

The defendant’s appeal relates only to the disallowance of fees paid or estimated for other services than those made necessary hy the injunction, and is thus brought directly within the case of Newton v. Russell (Court of Appeals, January 24, 1882). * It must therefore -fail. The plaintiff’s appeal must succeed. .The injunction was temporary and there was no prayer for its continuance as part of the final relief sought in the action. The services for which compensation has been allowed were rendered in a vain effort to show cause why “ an injrmction should not be granted.” Having been thus unsuccessful in resisting the allowance of the injunction, there is no ground upon which the sureties can be required to pay these expenses, or the expenses of the reference ordered on defendant’s motion to ascertain the damages by reason of the injunction.

Ho damages other than counsel fees were found to have been sustained by the defendant, and as the plaintiff is not liable for those, he should not be required to pay for the inquiry.

The order appealed from by the plaintiff should be reversed, and the order appealed from by the defendant should be affirmed, with costs of one appeal to the plaintiff.

All concur, except Bapallo, J., absent.

Ordered accordingly.

* 87 N. Y. 537.