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Witbeck agt. Holland.
communicated to the defendants agent, and that no inquiry was made of either of those families for the residence of the consignee, when inquiry of either must have disclosed it. The judgment should not be reversed for this erroneous evidence. The judgment should be affirmed.
Patterson agt. Bloomer.
CHARLES G. PATTERSON agt. ELISHA BLOOMER.
Where defendant's damages are assessed upon a reference, on the dissolution of an
injunction, the court may order the plaintiff to pay them, and if he refuses, may
enforce the payment thereof by attachment. Where in such case, the report of the referee has been confirmed in a proceeding to
which the plaintiff was a party, and no appeal having been taken by him, the same is conclusive upon him.
Special Term, November, 1869.
AFTER an injunction had been issued in this case, and the usual undertaking given, (which the plaintiff did not sign) he discontinued. A reference was thereupon ordered to compute the defendant's damages. The plaintiff had notice of, and opposed, the application; and also appeared on the reference, but filed no exceptions to the report. A motion for a “final adjudication,” and for a confirmation of the report, was made, which was granted, and an order made, June 23, 1868," that the plaintiff was not and had not been entitled to said injunction; that the defendant's damages caused thereby amounted to $2,060, and that he was entitled to recover the same from the plaintiff and his sureties.” This order was served on the plaintiff's attorney, July 1, 1868, and personal notice given him, October 1, 1868, but no appeal was ever taken therefrom. A suit was subsequently commenced against the sureties. The defendant now moves on affidavits showing the above facts, and that service of a certified copy of this order had been made on the plaintiff, and a demand made by a person having written authority from the defendant, for an order that the plaintiff pay or be punished as for a contempt.
Patterson agt. Bloomer.
GEORGE W. WINGATE for the defendant.
First.- The plaintiff cannot go behind the order of June 23, 1868, which adjudicates the defendant's damages and his right to recover them from him.
I. Having had full notice of that order and of all prior proceedings, his failure to appeal made it conclusive.
II. The method of correcting error is by appeal, not by disobedience, (People agt. Sturtevant, 5 Seld., 266.)
Second - The order was regular.
I. The discontinuance by the plaintiff, involved the concession that the injunction could not be maintained, and that the plaintiff was not entitled to it. (Pacific M. S. S. Co. agt. Leuling, 7 Abb., N. S., 37, 40; Taaks agt. Schmidt, 19 How., 414; Crockett agt. Smith, 14 Abb., 62; Mutual Safety Ins. Co. agt. Roberts, 4 Sandf. Ch., 592 ; Coates agt. Coates, 1 Duer, 664; Carpenter agt. Bosworth, 4 Bosw., 655; Cumberland Coal and Iron Co. agt. Hoffman Steam Co. 39 Barb., 16.)
II. The fact of the plaintiff's not having signed the undertaking was immaterial. (a) It is not the practice for al plaintiff to sign undertakings on injunction, (Askin agt. Hearns, 3 Abb., 188; Leffingwell agt. Chave, 10 Id., 475, 476 ; Rep., of Mexico agt. Arrangoiz, 5 Duer., 640.) (6) The reference is provided by the Code, irrespective of the terms of the undertaking, (Code, $ 222.) (c) The plaintiff is liable as a wrong doer in any event, and a bond having been given “on his part” (Code § 222,) prescribing a particular method of computing the damages, he cannot object thereto. (Askin agt. Hearns, 3 Abb., 188.)
III. The direction to pay was proper, although as against the sureties a new action should perhaps be brought, yet the liability of the plaintiff having been fully adjudicated, no further proceedings were necessary or should be required. The Code contemplates that these damages should be fixed and paid in a summary proceeding in the original action;
Patterson agt. Bloomer.
making a distinction between these and other cases of damages on undertakings. (Compare § 222 with § 182, 207, 230, 234, Code.)
Third, The court has jurisdiction to enforce the order by proceeding for contempt. (3 Rev. stat., 849 et seq.; Crary Specl. Proc., 172 et seq.)
DUDLEY FIELD for the plaintiff.
First, The plaintiff not having signed the undertaking is not liable for these damages.
Second, The order of reference was irregular.
Third, The court has no jurisdiction to proceed for as a contempt.
INGRAHAM J.—The court may order the plaintiff to pay the damages assessed, and if he refuses may enforce the payment thereof by attachment. The report having been confirmed in a proceeding to which the plaintiff was a party and no appeal having been taken by him, the same is.conclusive upon him.
The defendant may have an order directing the payment of the money within thirty days after service of notice of this order or in default that an attachment issue.
Barton agt, McKinley.
N. Y. SUPERIOR COURT.
John C. BARTON, assignee, agt, JOHN H. McKINLEY.
If, after a cause has been once properly placed on the calendar for a short canse day,
and is not reached for trial on that day, or is moved off without any day being assigned, and it does not appear on the calendar for the next short canse day, either party may, at the opening of the court on that day, move the court to place the cause on the calendar, and when the cause is reached for trial, take the default of the other party, if he fail to appear. The default so taken will be regular; and this. although the other party, on the afternoon of the day before, inspected the calendar in the clerk's office, and did not find the cause thereupon, and for
that reason did not attend. A like procedure may be had where the court sets down a short cause for a particu
lar short cause day, and the same does not appear on the calendar for that day. Hereafter, the fact that in such cases the cause does not appear on the calendar as
made out by the clerk, and published in the newspapers of the day, before the one on which the cause is called, nor on the calendar published on the morning of that day, will not be taken as an excuse for failing to appear on the trial, or if appear. ing, for failing to be ready; and this, even though the party so failing may have examined all of such calendars, and found that the cause was not thereon.
Special Term, December, 1869.
This cause was ordered to be placed on the calender of short causes, and was placed on that calendar for the 18th June, 1869. On that day it was set down for the 25th of June, 1869. On the 25th, defendant moved the cause off the term.
On the 15th day of October, 1869 (being the first short calendar day after the 25th of June, 1869), plaintiff took an inquest against the defendant by default.
The cause was not placed on the calendar for the 15th of October until about nine o'clock in the morning of that day; and it did not appear on the calendar of that day, as it was printed in the morning newspapers. On the afternoon of the 14th of October, defendant's attorney went to the clerk's