Dry Dock, East Broadway & Battery Railroad v. Cunningham , 45 How. Pr. 458 ( 1873 )

By the Court, Ingraham, P. J.

An injunction was obtained by the plaintiffs against the defendants restraining the defendants from building a sewer, in a street over which the plaintiffs’ road was laid. The defendants are the mayor, &c., of New York and Cunningham, with whom the contract was made to do the work.

Cunningham did not appear on the suggestion of the corporation counsel that his rights could be protected by him. Afterwards the injunction was dissolved on the application of the counsel for the corporation, and, on a consent signed by the counsel for the corporation and the plaintiffs’ attorney, an order was entered discontinuing the suit and canceling the undertaking.

The defendant, Cunningham, now moves to have so much of the order as directs the cancellation of the injunction vacated. The motion was granted at special term and the plaintiff appeals.

It is not by any means clear that Cunningham might not bring an action on the undertaking, notwithstanding the order canceling it. If done without his consent and he had a property in it, that right could not be taken from him without some assent or knowledge on his part. It was not necessary, to give it validity, that the defendant should appear in the action. His interest in the undertaking began when he was enjoined, and that interest became perfected when the court decided that the plaintiff had no right to the injunction.

I doubt very much the propriety of canceling undertakings on file in the court.

It certainly ought not to be done where there are other persons interested besides those who consent to the order. It is apparent, from the order referred to, that it was made on the supposition that all the parties interested in the action assented to its entry; without such assent the order should not have been made. In N. Y. Cent. Ins. Co. agt. Safford et al. (10 How. Pr. R., 344), Cady, J., says: “ The undertaking is the property of the plaintiff (or party) as much as if it had been given to him on the sale of goods or a farm, except that he has no right to take it from the files of the court without leave, and he can maintain an action on it without that.”

It is urged that Cunningham had no standing in court, and, therefore, is not entitled to notice of the application.

It has been held that the undertaking is for the benefit of all the defendants enjoined, whether served or not (Cumberland Coal Co. agt. Hoffman, 39 Barb., 16). If so, it surely cannot be necessary for the defendants not served to appeal* 1, to have the benefit of the undertaking.

I think there was no authority for canceling the undertaking so far as relates to the defendant, Cunningham; and in that respect the order should be affirmed.

Davis. J. concurs.