James, J.
This was, a motion to confirm the report of a' referee, and exceptions to such report.
The defendant, Schmidt, was plaintiff in anaetion- commenced against the firm of Schroeder & Go., of Buenos Ayres, upon which an attachment had been issued to the defendant [331]*331Lockman, sheriff of Richmond county, who claimed to liave lawfully seized certain hides of Schroeder & Co., subject to the revenue duties.
This action was commenced by plaintiff claiming to be the owner of said hides, to restrain defendants from interfering therewith, in which an injunction was issuéd to that effect, whereby plaintiff obtained and sold said hides.
On trial, the complaint was dismissed, the injunction dissolved, and a reference ordered to ascertain the damages by reason of such injunction.
The referee reports that said hides were shipped by Schroeder & Co., from Buenos Ayres to their agents in blew York, to séll on account; that on February 27, 1858, said agents, having a small sum of money in hand, an attachment was issued against Schroeder & Co., and delivered to the sheriff of blew York, who served a notice on the said agents, attaching all funds and property in their hands; that Feburary 22d an attachment in favor of the defendant Schmidt against Schroeder & Co. was also issued and delivered to said sheriff; that on the 9th of March the bills of lading of said hides having arrived the day before said agents gave the sheriff of bfew York a certificate of the same, and agreed to hold said bills, or said hides to arrive, or the proceeds thereof, subject to said attachments; that March 3d another attachment in favor of said Theodore Schmidt against Schroeder & Co. was issued and delivered to the sheriff of Richmond county; that on -the 10th day of April, before noon, said agents sold said hides to arrive, to plaintiff Taacks; that in the áfternoon of same day the sheriff of Richmond county seized said hides in his bailwick before they had even been within the county of blew York, of course subject to the United States revenue laws; that he accompanied the same to bTew York, and kept the custody of the same as far as,:possible, subject to said revenue laws, until forced to surrender his claim by force of.said injunction.
As conclusions of law, the referee found that the sheriff* of Richmond had a valid- levy upon said hides, and a special property therein equivalent to any judgment recovered in the action in which such attachment issued;' and if final judgment should be obtained in said action, the amount of said judgment, the legal fees and charges of said sheriff, and the sum paid his [332]*332deputies for services and expenses, would be proper damages occasioned by said injunction; and, also, that the costs, fees, expenses, and disbursements in this action were also damages occasioned by said injunction.
The plaintiff interposes five exceptions to this report which I will first consider.
The first three involve the same question; whether or not the sheriff of Richmond had a valid levy upon the hides by virtue of the attachment:
The plaintiff insists the hides could not be attached by the sheriff of Richmond :
1st. Because they had been previously attached by the sheriff of ¡New York, and were consequently in the custody of the law.
2d. Because they were plaintiff’s property.
3d. Because the hides were in the legal custody of the United States for duties.
These points were satisfactorily answered by the referee in his opinion, and it will not be necessary for me to go over the same ground. I fully concur in his conclusions and in most of his reasoning.
The fourth exception is to the allowance for damages.
The referee allows as follows:
1st. The amount and interest of any judgment which may be recovered under the attachment.
2d. The legal-fees and charges of said sheriff of Richmond county upon the amount for which such judgment shall be recovered.
3d. The sum of $336 for services and expenses of deputies in seizing and watching said hides.
4th, The sum of $50 for referee’s fees on first hearing.
5th. The sum of $500 for the costs, fees, and disbursements of the attorney and counsel of defendant Schmidt in this action.
6th. The sum of $500 for the costs, fees, and disbursements of the defendant Lockman in this action; and
7th. The sum of $200 for the costs and expenses of the hearing before said referee.
I infer from the papers that no final judgment has been as yet entered in this case; that upon dismissing the complaint [333]*333this referee was ordered under section 222 of the Code, to ascertain what damages had been sustained by reason of the injunction, and that no judgment will be entered herein until the coming in and confirmation of the referee’s report.
In ascertaining the damages, the referee had nothing to do with the question of fees, costs, disbursements, or allowances, either in this action or the action under the attachment.
The final judgments recovered in these actions are proper damagesbut the fees, costs, and disbursements must be fixed and adjusted in each case as required by statute Code, §§ 243, 307, 308, 309, 311, 312 (2 Rev. Stat., 646).
The adjustment must in all cases be performed in part by the officer who issued the attachment (2 Rev. Stat., 646; Code, 243); the part being fixed by law must be adjusted by the clerk, and all extra allowances by the court.
It is a power that cannot be delegated to a referee, even under the cover of fixing damages sustained by an injunction.
Some of this extra labor under the attachment allowed by the referee was occasioned by the injunction.
If the plaintiff succeeded in the action in which the attach- ° ment issued, the injunction has probably deprived Schmidt of the means of satisfying such judgment out of the property of Schroeder & Co.; and, therefore, the plaintiff in the injunction- v. suit, and his sureties should be held to make Schmidt good; should pay his jhdgment. So in the injunction-suit the plain- ,-v tiff and sureties are liable for the judgment as damages; but the costs and disbursements which the law allows, arid such extra compensation as the court may think proper and right under the circumstances, are to be carried into and form, part of that judgment; and such costs should include the*costs and expenses of. the reference under the order to ascertain the damages. It may be otherwise when other damages than costs which are not to go into" a judgment are sought.
■ In this case all which the defendants can legally claim as damages, by reason of the injunction, is the judgment herein; > the costs and expenses of the referee, if not included in said judgment; and the judgment, if one shall be recovered by the plaintiff, in the action in which the attachment issued.
I confess there seems an inconsistency in proceeding to an assessment of damages before the damages can be known, and [334]*334the true course in this case would have been to have waited until the final determination of the attachment-suit.
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James, J.
This was, a motion to confirm the report of a' referee, and exceptions to such report.
The defendant, Schmidt, was plaintiff in anaetion- commenced against the firm of Schroeder & Go., of Buenos Ayres, upon which an attachment had been issued to the defendant [331]*331Lockman, sheriff of Richmond county, who claimed to liave lawfully seized certain hides of Schroeder & Co., subject to the revenue duties.
This action was commenced by plaintiff claiming to be the owner of said hides, to restrain defendants from interfering therewith, in which an injunction was issuéd to that effect, whereby plaintiff obtained and sold said hides.
On trial, the complaint was dismissed, the injunction dissolved, and a reference ordered to ascertain the damages by reason of such injunction.
The referee reports that said hides were shipped by Schroeder & Co., from Buenos Ayres to their agents in blew York, to séll on account; that on February 27, 1858, said agents, having a small sum of money in hand, an attachment was issued against Schroeder & Co., and delivered to the sheriff of blew York, who served a notice on the said agents, attaching all funds and property in their hands; that Feburary 22d an attachment in favor of the defendant Schmidt against Schroeder & Co. was also issued and delivered to said sheriff; that on the 9th of March the bills of lading of said hides having arrived the day before said agents gave the sheriff of bfew York a certificate of the same, and agreed to hold said bills, or said hides to arrive, or the proceeds thereof, subject to said attachments; that March 3d another attachment in favor of said Theodore Schmidt against Schroeder & Co. was issued and delivered to the sheriff of Richmond county; that on -the 10th day of April, before noon, said agents sold said hides to arrive, to plaintiff Taacks; that in the áfternoon of same day the sheriff of Richmond county seized said hides in his bailwick before they had even been within the county of blew York, of course subject to the United States revenue laws; that he accompanied the same to bTew York, and kept the custody of the same as far as,:possible, subject to said revenue laws, until forced to surrender his claim by force of.said injunction.
As conclusions of law, the referee found that the sheriff* of Richmond had a valid- levy upon said hides, and a special property therein equivalent to any judgment recovered in the action in which such attachment issued;' and if final judgment should be obtained in said action, the amount of said judgment, the legal fees and charges of said sheriff, and the sum paid his [332]*332deputies for services and expenses, would be proper damages occasioned by said injunction; and, also, that the costs, fees, expenses, and disbursements in this action were also damages occasioned by said injunction.
The plaintiff interposes five exceptions to this report which I will first consider.
The first three involve the same question; whether or not the sheriff of Richmond had a valid levy upon the hides by virtue of the attachment:
The plaintiff insists the hides could not be attached by the sheriff of Richmond :
1st. Because they had been previously attached by the sheriff of ¡New York, and were consequently in the custody of the law.
2d. Because they were plaintiff’s property.
3d. Because the hides were in the legal custody of the United States for duties.
These points were satisfactorily answered by the referee in his opinion, and it will not be necessary for me to go over the same ground. I fully concur in his conclusions and in most of his reasoning.
The fourth exception is to the allowance for damages.
The referee allows as follows:
1st. The amount and interest of any judgment which may be recovered under the attachment.
2d. The legal-fees and charges of said sheriff of Richmond county upon the amount for which such judgment shall be recovered.
3d. The sum of $336 for services and expenses of deputies in seizing and watching said hides.
4th, The sum of $50 for referee’s fees on first hearing.
5th. The sum of $500 for the costs, fees, and disbursements of the attorney and counsel of defendant Schmidt in this action.
6th. The sum of $500 for the costs, fees, and disbursements of the defendant Lockman in this action; and
7th. The sum of $200 for the costs and expenses of the hearing before said referee.
I infer from the papers that no final judgment has been as yet entered in this case; that upon dismissing the complaint [333]*333this referee was ordered under section 222 of the Code, to ascertain what damages had been sustained by reason of the injunction, and that no judgment will be entered herein until the coming in and confirmation of the referee’s report.
In ascertaining the damages, the referee had nothing to do with the question of fees, costs, disbursements, or allowances, either in this action or the action under the attachment.
The final judgments recovered in these actions are proper damagesbut the fees, costs, and disbursements must be fixed and adjusted in each case as required by statute Code, §§ 243, 307, 308, 309, 311, 312 (2 Rev. Stat., 646).
The adjustment must in all cases be performed in part by the officer who issued the attachment (2 Rev. Stat., 646; Code, 243); the part being fixed by law must be adjusted by the clerk, and all extra allowances by the court.
It is a power that cannot be delegated to a referee, even under the cover of fixing damages sustained by an injunction.
Some of this extra labor under the attachment allowed by the referee was occasioned by the injunction.
If the plaintiff succeeded in the action in which the attach- ° ment issued, the injunction has probably deprived Schmidt of the means of satisfying such judgment out of the property of Schroeder & Co.; and, therefore, the plaintiff in the injunction- v. suit, and his sureties should be held to make Schmidt good; should pay his jhdgment. So in the injunction-suit the plain- ,-v tiff and sureties are liable for the judgment as damages; but the costs and disbursements which the law allows, arid such extra compensation as the court may think proper and right under the circumstances, are to be carried into and form, part of that judgment; and such costs should include the*costs and expenses of. the reference under the order to ascertain the damages. It may be otherwise when other damages than costs which are not to go into" a judgment are sought.
■ In this case all which the defendants can legally claim as damages, by reason of the injunction, is the judgment herein; > the costs and expenses of the referee, if not included in said judgment; and the judgment, if one shall be recovered by the plaintiff, in the action in which the attachment issued.
I confess there seems an inconsistency in proceeding to an assessment of damages before the damages can be known, and [334]*334the true course in this case would have been to have waited until the final determination of the attachment-suit. Still the party ought not to be deprived of what may prove a just claim, through haste of procedure, if his rights can be preserved in pursuance of law and without injustice to his opponent. I think that may be done in this case by suspending the confirmation of the referee’s report until the final determination of the action in which the attachment was issued.
The fifth exception was to the amount found as the value of the hides. It is agreed that there was an error, and that their value was $6,200, on the 4th day of June, 1858.
All of the exceptions to the report but the fourth and fifth are disallowed. The fifth is allowed, and the foprth is modified so as to fix the damages at the amount of any judgment which shall be finally determined for the defendants in this action, and the costs and expenses of the reference to ascertain the damages occasioned by the injunction, if the same shall not be included in the said judgment; and also any judgment which Theodor Schmidt may finally recover in the action against Schroeder & Co., in which the attachment was issued directed to the sheriff of Eichmond county.
That the confirmation of said report so altered and modified be suspended until the further order of the court, with leave to defendants to move on the usual notice, and on affidavit showing the action in which the said attachment issued determined, or a stipulation that defendants herein abandon all claim for damages in that action, by reason of the injunction issued in this.
Let an order be entered in conformity with this opinion.
Subsequently judgment was given in the case of Schmidt a. Schroeder & Co. in favor of the plaintiff, and the plaintiffs moved to insert the amount of the judgment in the judgment against Taacks in the injunction-suit. The plaintiff, Taacks, objected to two items taxed in the judgment against Schroeder.
Barnard, J.
—An order of reference was made in.this action to ascertain and report the damages sustained by the defendants, by reason of an injunction issued therein. The referee made his report, and the plaintiff filed exceptions to it. The [335]*335motion to confirm the report came on before Judge James, and the exceptions were argued before him; he made an-order whereby the report was so far modified as to fix the damages in this action at the amount of any judgment which should be finally determined for the defendants in this action and the costs and expenses of the reference to ascertain the damages occasioned by the injunction therein, if the same should not be included in the costs of such judgment, and of any judgment which Theodor Schmidt might recover in a certain action against E. Schroeder & Co. In other respects the report was confirmed, and the confirmation of the report so modified was suspended until the further order of the court, with leave to the defendants to move, on the usual notice and an affidavit showing the determination of said action of Schmidt a. Schroeder & Co.
The defendants now, on an affidavit that the case of Schmidt a. Schroeder & Co. is determined, move for a full confirmation of the said report as modified, and claim as part of their damages the amount of the judgment in the case of Schmidt a. Schoeder & Co. The plaintiff objects to the allowance of two of the items of costs contained in that judgment, to wit, the item of §848 allowed to the sheriff for his services on an attachment in that action, and $250 allowed to the plaintiff as an extra allowance in that action.
The order of Judge James disposes of the plaintiff’s objection. That order cannot be reviewed in this proceeding before me, either directly or indirectly. If erroneous, it must be corrected on appeal. If its language were ambiguous, then the proper construction to be given to it would necessarily arise on this motion. But it is not ambiguous. In clear direct terms, it fixes the amount of any judgment to be recovered in this action of Schmidt a. Schroeder & Co. as one of the items of damages.
I am also of opinion that the provisions of the Code authorize an allowance in this case, and that the case is a proper one to order an allowance in.
An allowance of $300 is given to the defendant Schmidt, and a like allowance to the sheriff.
The defendant’s attorney will present an order drawn in conformity with this opinion.