Waterbury v. Bouker , 17 N.Y. Sup. Ct. 262 ( 1877 )

Daniels, J.:

It was held in this case that the plaintiff was not entitled to a continuance of the injunction, which was issued to restrain the performance of certain public work by the defendant, and leave was thereupon given the plaintiff, on his motion, to discontinue the action without costs. An order was entered for that purpose, and upon the usual affidavit a motion was made on behalf of the defendant for a reference to ascertain the damages sustained by him in consequence of the injunction. That is the usual course of proceeding under the circumstances presented. By the orders made denying the continuance of the injunction and discontinuing the action, it did. finally appear.that the plaintiff was not entitled to the injunction he had obtained. (Hope v. Acker, 7 Abb., 308; Carpenter v. Wright, 4 Bosw., 655; Pacific Mail Steamship Co. v. Leuling, 7 Abb. [N. S.], 37; Park v. Musgrave, 13 S. C. N. Y., [6 Hun], 223.) The proceedings in the action were completely ended, and in that respect the case differs from Weeks v. Southwick (12 How., 170), where the referee directed the complaint to be dismissed, but no judgment to that effect had been entered in the action. A reference after the final determination against the right of the plaintiff to the injunction is very much a matter of course, for the purpose of ascertaining the defendant’s damages. (Dunkin, v. Lawrence, 1 Barb. [S, C.], 447; Coates v. Coates, 1 Duer, 664, and Park v. Musgrave, supra). A denial of it in this case would be an inconvenient precedent in the way of the success of future applications of the same nature. If it should be sustained in this case it could be with the same propriety in all others, which would not faff to result in serious embarrassment to parties improperly restrained and enjoined.

In the present crowded condition of the Circuit calendars, a reference is by far the easiest and most expeditious course for ascertaining the defendant’s damages; and it has usually been quite uniformly adopted for that purpose in this class of cases. The defendant showed that he had sustained damages by reason of the restraint imposed upon him. He was not deprived of his right to recover them by the denial of costs, and justice requires that he should be allowed to pursue the ordinary course in establishing their extent. That practice has been provided for by the Code (§ 222), and it was sanctioned by the course of proceeding followed in the late Court of Chancery. The plaintiff showed no good reason why the defendant should not be allowed to avail himself of its benefits in this case.

The order should be reversed with ten dollars costs, and the reference ordered which was applied for. The order will direct reference to Hon. Daniel P. Ingraham.

Davis, P. J., and Brady, J., concurred.

Order reversed, with ten dollars costs. Reference ordered to Hon. Daniel P. Ingraham.