Cumberland Coal & Iron Co. v. Hoffman Coal Co. , 39 Barb. 16 ( 1862 )

By the Court.—Ingraham, P. J.

The want of jurisdiction of the court over the subject-matter of the action, did not prevent the defendants from recovering costs on the dismissal of the complaint, nor does it deprive the defendants of the right to damages, on the undertaking given on the issuing of the injunction when it was dissolved. The court had sufficient jurisdiction over the parties to commence the action, although there, was none over the subject-matter, and in such a case I can see no reason why the defendants should not have the benefit of the undertaking filed for that purpose. The plaintiff is estopped from denying jurisdiction. (2 Sandf., 81.) The only question is whether a defendant who obeys an injunction before the process is sei’ved, may have such relief. I think he may if he obeys the injunction. It has been held that it is the duty of the defendant to obey an injunction if he knows it has been granted, although it has not been served, and if he disobeys it he would be liable to an attachment. The injunction is granted before service of process often, and the undertaking when filed in such a case is for the benefit of all the defendants, whether served or not, that are enjoined.

The order should be affirmed, with costs.

Barnard, J., concurred.