Weeks v. Southwick

12 How. Pr. 170

Opinion

Harris, Justice.

The motion for a reference is premature. The undertaking, upon issuing the injunction, is, that the plaintiff will pay to the party enjoined, such damages as he may sustain by reason of the injunction, if the court shall finally decide that he was not entitled thereto. Such final decision cannot be said to have been made in this case. True, the report of the referee is to that effect. But judgment has not been entered upon that report. It may never be entered. Until it is entered, so that the decision of the referee becomes the judgment of the court, the defendant’s right to damages is only contingent. (See Code, § 222; Dunkin agt. Lawrence, 1 Barb. 447.)

Nor is this a case for an extra allowance. The action is not brought to recover money or property, but merely for equitable relief. Such a case is not within the provisions of the 308th section of the Code. (See Sprong agt. Snyder, 6 How. 11; Osborn agt. Betts, 8 id. 31.)

I should not have thought this a proper case for charging the defendants with the costs of the motion, were it not for the fact that they have themselves claimed such costs, without presenting, in their own papers, a case which, under any circumstances, would have entitled them to costs.

The motion must, therefore, be denied, with costs.