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unless a case free from doubt and from danger of injustice to de fendant be made out.94
Where the requirement is thus discretionary because there is no statute, the form and condition of the security is equally in the discretion of the court; and on continuing an injunction the court may require a new undertaking, and may prescribe as a condition of continuing the injunction, that the old undertaking be cancelled.95
2. Statutory requirements.] — The Codes of Procedure require security in all cases, and a temporary injunction cannot be granted without requiring security;06 but the statutes leare both the amount and the propriety of requiring more than one surety in the discretion of the court, except in those cases where the object of the injunction is to stay proceedings in an action for the recovery of money, or in ejectment, or dower. 97
This requirement of at least some security applies to the common temporary order restraining defendant pending a motion for a temporary injunction ;98 and to the injunction clauses in an order appointing a receiver, if they go beyond enjoining interference with the receiver. 99
But it does not apply to a stay of proceedings in the action in which the stay is applied for, nor to an order forbidding interference with a receiver or other officer of the court, nor to an order to stay waste.? an improvident injunction has otherwise no redress, unless he can make out a case of malicious prosecution or abuse of process. Palmer t. Foley, 71 X. I. 106; S. P., Russell i. Farley, 105 U. S. 433, 437. Contra, Florance t. Nixon, 3 La. 89.
94 Dodd r. Flavell, 2 C. E. Green, 255 (holding that where plaintiff's right is clear and the infraction of that right is satisfactorily established, no security need be required to protect defendant against such damages as may be incurred by reason of the injunction).
95 See paragraph 11, and Kent r. Bierce, 6 Ohio, 336.
98 Sheldon 1. Allerton, 1 Sandf. 700; s. P., Methodist Churches c. Barker, 18 N. Y. 463 (dictum).
99 Pratt r. Underwood, 4 Civ. Pro. R. (Browne), 167 (holding that the power to appoint a receiver does not dispense with the statutory requirement of security on issuing an injunction).
But it may be that in such case the undertaking only covers damages sustained before the receiver takes possession. Kerngood č. Gusdorf (Supm. Ct. Dist. Colum. 1886), 3 Cent. Rep. 759.
1 Watt 1. Rogers, 2 Abb. Pr. 261, 266; Carter v. Hodge, 150 N. Y. 532.
2 Woerishoffer 6. North River Constr. Co., 99 N. Y. 398; Phenix Fire, ete, Co. t. North River Constr. Co., 6 Civ. Pro, 106.
3. The practice.] — The injunction may be expressed to be con. ditional upon the giving of security in a specified sum, or, the court having fixed the amount, the security may be given before entering or signing the injunction, and the fact that it has been given be recited in it; and the latter is the better practice. Failure to give the undertaking is an irregularity, and may be cured by permitting filing nunc pro tunc.8
4. Form.] — The undertaking to be given on the granting of a provisional or temporary injunction order must conform, in terms or in substance, to the requirements of the Code therefor; 4 but the court may in its discretion add more onerous or specific obligations than the statutory form would necessarily involve."
5. Consent to reference, etc.] — If either the statute or the undertaking itself? provides that the damages may be ascertained upon a reference or otherwise, this course may be pursued to fix the amount, leaving only the question of liability to be determined by action, but a provision in the undertaking is necessary to secure this effect, unless it is contained in the statute.8 The New York statute leaves it to the court to determine the method of ascertaining the amount of the damages, though a reference is usually ordered.
6. Security on staying proceedings at law.] — Before the existing statute, the Court of Chancery was accustomed to refuse
3 Manley v. Leggett, 62 Hun, 562, 17 N. Y. Supp. 68. See Elliott v. Osborne, 1 Cal. 396, and Pell v. Lander, 8 B. Mon. 554, to the effect that an order for injunction need not be regarded until security is given.
4 Palmer v. Foley, 71 N. Y. 106 (dictum).
5 Thus in Candee v. Wilcox, 26 Hun, 666, an order allowing an injunction without prejudice to an action of ejectment was granted, on condition “ that the plaintiffs therein should give an undertaking in their action for the pay. ment of the defendant's costs, adjudged against the plaintiffs in that action or in the action at law in which the right to said premises and the possession should be tried and determined, and the value of the use and occupation of said premises from [date), during the pendency of said action, in which such trial and determination should be had, and against the commission of waste; but in case of plaintiffs' failure to give said undertaking, then the said injunction to be dissolved,” was held within the power of the court; and the undertaking, though not prescribed by statute, was held valid.
6 Higgins v. Allen, 6 How. Pr. 30.
Contra are dicta in Russell v. Farley, 105 U. S. 433; Browning v. Porter, 12 Fed. Rep. 460.
O N. Y. Code Civ. Pro., 8 623.
to stay proceedings in a personal action at law — that is to say, an action for the recovery of a money judgment — unless the complainant would pay the amount into court, or give security not only for the payment of any damages caused by the injunction, but for payment of the demand sued for if judgment should be recovered ; and it was held proper to do this on proof of danger of insolvency, although not on mere allegation of fear of it.
This rule, embodied in the New York Revised Statutes," as a restriction on chancery injunctions against proceedings“ at law, in personal actions," and in actions “ to recover lands or the pos. session" thereof, is revised in the Code of Civil Procedure, where it is expressed as a restriction on staying proceedings “ in an action in which the complaint demands judgment for a sum of money only after issue has been joined therein,''12 and in an action for ejectment, or for dower, after verdict, report or decision.13
7. — in what cases.] — A judgment confessed is a judgment in an action, within the meaning of this rule. 14 And any legal step, whether in court15 or taken by an officer of the court16 in pursuance of the judgment, is a "proceeding.” 16
10 Rodgers r. Rodgers, 1 Paige, 426. 112 X Y. R. S. 189, $$ 141-143.
The practice in respect to issuing injunctions under this statute is stated in Jenkins r. Wilde, 2 Paige, 394.
In Snyder r. Seeman, 41 N. J. Eq. 405, 4 Cent. Rep. 54, it was held that when a temporary injunction to restrain eviction under an action of ejectment, granted on a bill not stating that the eject ment action had proceeded to judg. ment, is continued after it appears from the answer that judgment had been obtained in such action, the complainant must give such security as would have been required upon the granting of the injunction had it been known that a judgment had been entered in the ejectment action - the bond to cover damages from the commencement of the injunction suit.
12 Security under section 611 cannot be required where it does not appear that the action sought to be stayed is at issue. Richards v. Goldberg, 7 Mise. 388, 27 N. Y. Supp. 919.
13 N. Y. Code Civ. Pro., $$ 611, 616.
It appears from a note of Mr. Throop's to the commissioner's report that this was intended to exclude equitable actions.
1+ Burns r. Morse, 6 Paige, 108; Aldrich v. Ætna Co., 8 Wall. 491.
15 Dickey r'. Craig, 5 Paige, 283, holding that scire facias to revive a judg. ment, although for some purposes treated as an independent action, is a continuation of the original action, and to obtain an injunction against it security must be given.
16 Ingalls r. Merch. Nat. Bank, 51 App. Div. 305, 64 N. Y. Supp. 911; Boker t'. Curtis, 2 Edw. Ch. 110; holding that the sheriff's act in paying over money made by him on execution is a proceeding, within the statute, and an injunction to stay it requires security.
8. — fraud.] – Cases where actual fraud in the recovery of the judgment is the ground of the injunction are excepted by the statute;17 and it seems that circumstances which would make its enforcement operate as a fraud — such as the fact that the judgment has already been paid — permits the court to dispense with security.18
9. — corporation cases.] — The special provisions of statute allowing a plaintiff suing a corporation for sequestration, to enjoin other creditors, constitute an implied exception to this rule, and do not require the usual security on staying proceedings at law.19
10. — persons not in privity.] - Where the plaintiff in the injunction suit is an entire stranger to the judgment, the collection of which is enjoined, the statute does not apply, for it relates only to parties in the same action and their privies;20 and where there is no privity the statute is not applicable; as for instance where the action is to enjoin defendant from enforcing his judgment against one who was a stranger to the suit in which it was recovered, and against his property which was not bound by the judgment.21
But one whose land is apparently charged with the payment of the judgment by reason of its being docketed so as to constitute an apparent lien, is in privity with the parties within the
17 N. Y. Code Civ. Pro., $ 619. The fraud in the recovery of the judgment, which will enable the court to dispense with a deposit and bond, is such a fraud as a false statement, a substitution of one paper for another, or the like. A failure to perform a promise or condition on which the judgment was given is not such a fraud. Cook v. Dickerson, 2 Sandf. 690.
Confession of judgment for a sum not yet due, and already secured, made for the purpose of levy and sale to defeat other creditors — held fraud within the statute. Burns r. Morse, 6 Paige, 108.
18 Christie v. Bogardus, 1 Barb. Ch. 167, 172. Dictum, that if the plaintiff establishes beyond reasonable doubt that the judgment has been paid in whole or in part, the court may dispense with the statutory security; but holding that it cannot do so on a general allegation of payment. The party who seeks to be excused from depositing the money, or giving security, for the whole amount claimed by the adverse party to be due, must state the time, circumstances, and amount of each payment, so as to enable the court, by mere computation, to fix the amount of the deposit, or of the bond, and to give the party who is sought to be enjoined an opportunity to meet and deny the fact of such payments.
19 N. Y. Code Civ. Pro., $ 1806; Hutchinson r. N. Y. Central Mills, 2 Abb, Pr. 394. The reason is that he is suing, not in hostility to other creditors, but for equitable distribution among all,
20 Packer 1. Nevin, 67 V. Y. 550.
11. Relief from the obligation.] - Security required by the court by virtue of its inherent power, as distinguished from a statutory requirement making it the right of the party enjoined to have such security, is under the control of the court, and it has power at a subsequent stage of the cause to relieve the party from it as justice may require.23
FORM No. 654. Bond required by the court on granting injunction (common form where there
is no statute). [l'sual penal clause, see Form 35, p. 32, supra, to the word “WHEREAS,” naming defendant as the beneficiary: and continuing:] WHEREAS, the above bounden [name of plaintiff] has applied or is about to apply to the court for an injunction restraining the above-named [name of defendant] in respect of [indicating concisely the object of the injunction]:
Now the condition of this obligation is such that if the above bounden [name of plaintiff) shall pay all damages which the de fendant in said suit may sustain in consequence of said injune tion being granted, should the same be thereafter dissolved, then this obligation to be void, otherwise to be of full force and effect.
[Signatures and seals. ] Signed, sealed and delivered
in presence of
[Signature of witness.]
23 Russell u. Farley, 105 U. S. 433, 442, and see Kent v. Bierce, 6 Ohio, 336
24 This is the proper form according to established chancery practice. Bein v. Heath, 12 How. (U. S.) 175.
In Meyers v. Block, 7 U. S. Supm. Ct. Rep. 525, the words: “all such damages as he may recover against us by reason of the effects of said injunction, in case it should be decided that the injunction was wrongfully issued,” were held to cover damages resulting from the injunction even though before the bond was given; and that an action will lie on the bond without a previous recovery of such damages; practically superseding the different construction on the latter point in Bein v. Heath, 12 How. (U. S.) 175.
In Browning v. Porter, 12 Fed. Rep.
460, an injunction bond was conditioned to abide the decision which shall be made therein (the original suit], and pay all sums of money, damages, and costs that shall be ad. judged against them, if said injunetion shall be dissolved."
Held, that this did not cover the amount of the original judgment and its costs, nor the attorney's fee.
Russell v. Farley, 105 U. S. 433, the condition was that “the plaintiff will pay the parties enjoined by such injunction, or detained thereby, such damages as they, or either or any of them, may sustain by reason of such injunction, if the court finally decide that the party was not entitled thereto."