Johnson v. Elwood , 22 N.Y. Sup. Ct. 14 ( 1878 )

Per Curiam:

The order is, in substance, correct. The form is not complained of. By the injunction granted, defendant was restrained from doing certain nets. It is fair to assume he was injured by ' such restraint, if plaintiff wrongfully procured the injunction. By the death of defendant, the action abated. The administrators of defendant could not, without plaintiff’s consent, procure themselves to be substituted as defendant’s. Their only remedy, therefore, was by motion to compel plaintiff to substitute them as defendant’s, or for a dismissal of the complaint. Otherwise, the plaintiff, by neglect to act, could avoid the consequences of any improper action in procuring tho injunction, and escape the payment of such damages as may have been caused thereby. It cannot be that such a possible wrong can be sanctioned by the law. The action should be terminated by'discontinuance or a dismissal of the complaint, or else the plaintiff should make the substitution provided for in the order.

The order of Special Term should, therefore, be affirmed, with $10 costs and printing.

Present — Learned, P. J., Boardman and Tappan, JJ.

Order affirmed, with $10 costs and printing.