Strong v. De Forest

15 Abb. Pr. 427

Opinion

Sutherland, P. J.

It. appears from the testimony taken before the referee, that there was no application or motion to dissolve the injunction; but that the dissolution of the injunction followed from the dismissal of the complaint.

It cannot be said, therefore, that the counsel-fees of $500 were incurred in obtaining a dissolution of the injunction, and thus bringing this case within that of Coates a. Coates (1 Duer, 664); Wilde a. Joel (15 How. Pr., 320); and Edwards a. Bodine (11 Paige, 223). There was some evidence before the referee, that preparations were made by counsel to make a motion to dissolve the injunction ; but the referee does not find what the services of the counsel in making such preparation, as distinguished from services generally in the case and in the preparation for trial, were worth.

In my opinion, the report of the referee cannot be confirmed.

*

The case was referred back to the same referee, with directions to take further testimony, and to make an additional report on the basis of the above opinion ; and on the coming in of the report, the following order was made by Mr. Justice Miller : “It is ordered that said report, first made by said referee, as amended and explained in the said additional report, be in all respects confirmed. And the damages of said Benjamin De Forest and Charles L. Bowan be assessed at five hundred dollars, as reported by said referee, together with the sum of $60, the fees paid said referee, and $10 costs of this motion, making together the sum of $570.

“And it is further ordered, that said defendants or their attorneys have leave to prosecute said undertaking.”