FORM No. 669.

The same; dissolving as to some and continuing as to others.

[Ordering part may be] that the said motion be, and the same hereby is, granted as to the defendant Y. Z., and the injunction granted by said order be, and the same hereby is, dissolved as to said defendant, and that said motion be, and the same hereby is, in all respects, denied as to the defendant W. X., and the injunetion granted by said order be, and the same hereby is, continued as to said defendant W. X., until the further order of the court.

1. Attorney's authority.] - The attorney for the defendant has, by virtue of his general retainer, authority to proceed to fix the liability of the sureties on the undertaking.

The better opinion is that he should seek authority from his client before he proceeds to fresh suit against the sureties."

2. Power of court.]Since the statutes under which the injunction undertaking is given provides that the damages may be ascertained by a reference or otherwise as the court may direct, the court has power to direct a reference or otherwise determine the amount, although no express consent to such course be contained in the injunction.86

The court may by direction in the order of reference allow other than common-law evidence to be received by the referee.

84 Walradt r. Maynard, 3 Barb. 584. Compare p. 385, supra.

85 N. Y. Code Civ. Pro., § 623.

86 Higgins v. Allen, 6 How. Pr. 30.

87 Roberts v. White, 73 N. Y. 375, aff'g 43 Super. Ct. (J. & S.) 455.

3. Proceeding before judgment premature.] — There must be a final adjudication that plaintiff was not entitled to the injunction.88 An order of reference or other inquiry to ascertain damages is not regular until judgment has been entered,89 or the action discontinued against defendant's opposition,00 or dismissed for plaintiff's failure to prosecute.91 The vacation of the temporary order does not entitle the defendant to an order of ref

The objection that the order of reference is made before entry of judgment, even though expressly taken, is waived by proceeding on the reference.83

4. Action necessary to recover.]— Judgment on the undertaking cannot be rendered against the sureties without an action on the undertaking.94

95

5. Measure of damages.]— Counsel fees on procuring the dissolution of the order are among the damages recoverable, as well as counsel fee upon and the expenses of the reference to ascertain the amount of damages.96

6. Appeal.]- No appeal lies to the Court of Appeals, as the

88 Freifeld v. Sire, 96 App. Div. 296, 89 N. Y. Supp. 260; Benedict v. Benedict, 76 N. Y. 600. Dismissal because of insufficiency of complaint is such a final adjudication. Williams v. Montgomery, 148 N. Y. 519.

89 Lawton v. Green, 64 N. Y. 326.

90 McGown v. Barnum, 42 Misc. 585, 87 N. Y. Supp. 605; Perlman v. Bernstein, 83 App. Div. 203, 82 N. Y. Supp. 148.

91 Madison v. Brower, 81 App. Div. 116, 80 N. Y. Supp. 1059.

92 N. Y. Sec. & T. Co. v. Lipman, 83 Hun, 569, 32 N. Y. Supp. 65; Slingerland v. Albany Typographical Union, 115 App. Div. 15.

93 Roberts v. White, 73 N. Y. 375, aff'g 43 N. Y. Super. Ct. 455.

94 Troxell v. Haynes, 16 Abb. Pr. (N. S.) 1, 5 Daly, 389; Randall v. Carpenter, 47 N. Y. Super. Ct. 205; Harter r. Westcott, 11 Misc. 180, 32 N. Y. Supp. 111, aff'd 155 N. Y. 211; Wilson v. Dreyer, 65 App. Div. 249, 72 N. Y. Supp. 578; Easton v. N. Y. & L. B. R. R. Co., 26 N. J. Eq. 359.

Contra, Amalgamating Co. v. Ore Dressing Co., 79 N. C. 48, and so were earlier New York cases.

95 Pehrlman v. Bernstein, 93 App. Div. 335, 87 N. Y. Supp. 862, aff'd 179 N. Y. 531. Compare, however, Sargent r. St. Mary's, etc., Asylum, 112 App. Div. 674, 98 N. Y. Supp. 632 (refusing to allow counsel fee where the ex parte injunction was framed to continue only, "until the hearing and decision of the motion," and the court denied the motion); Sweet v. Mowry, 71 Hun, 381, 25 N. Y. Supp. 32.

96 Also counsel fee upon the trial when defendant succeeds, but has been unable pending trial to dissolve the injunction after proper effort. Youngs v. McDonald, 56 App. Div. 14, 67 N. Y. Supp. 375, 8 Anno. Cas. 461, aff'd, 166 N. Y. 639.

latest ruling by that court is that the order entered on the referee's report is an order in the action.97

FORM No. 670.

Undertaking on the part of creditor enjoined, to obtain money paid into court on enjoining him.98

[Title of action in which the injunction issued:]

The above-named plaintiff having paid into court the sum of dollars, to cover the sum awarded by the verdict [or, report of the referee, or, the decision of the court], in an action for a sum of money only [or if the stay was after judgment, say, having paid into court the sum of dollars, being the amount of the judgment for a sum of money, including interest and costs, recovered] by the above-named defendant Y. Z. against said A. B., in the court, of wherein said Y. Z., was [plaintiff], and the said A. B. was [defendant]; ** and this court having duly directed said sum to be paid over to said Y. Z, upon his giving an undertaking conditioned as follows:

99

NOW, THEREFORE [I- or, we naming surety or sureties as required by the order, with their places of residence] do hereby fjointly and severally] undertake to and with the people of the State of New York, pursuant to the statute, in the sum of dollars [fixed by the court], to pay the said sum of and interest thereon from the

day of

dollars,

19. or

any part thereof, as and when directed in the order or judgment of the court [or state directions, if given in anticipation].

[Signatures.]

[Date.] [Affidavit of Sufficiency or Justification; and Acknowledgment. as in Forms 252–254, p. 479; Approval of court, as in Form 255.] [Order for payment to be made by the court on notice, and entered; and certified copy, countersigned by the judge, to be presented. N. Y. Code Civ. Pro., § 751; N. Y. Gen. Rules, No. 69.]

97 Keator r. Dalton, 171 N. Y. 650, which seems to overrule Lawton r. Green. 64 N. Y. 326.

98 Under N. Y. Code Civ. Pro., § 614. As to the general principles governing undertakings, see page 448, supra.

99 As to the necessary privity be tween the parties, see Hegeman c. Wilson, 8 Paige, 28.

FORM No. 671.

Notice of motion for reference or writ of inquiry to ascertain damages caused by injunction.1

[Title of court and cause.]2

[Notice motion before the court, as in Form 47, p. 166 of this volume, substituting for the italic clause on p. 167 the following clause:] for a reference [or, a writ of inquiry or may ask both in the alternative] to ascertain the damages sustained by the defendant by reason of the injunction granted in this cause on the day of last.

FORM No. 672.

Order of reference to ascertain damages caused by injunction.4

[Caption and recitals, see Form 101, p. 259 of this volume.]

ORDERED, that it be referred to R. F., Esq., of

ascertain the damages sustained by the defendant [or, by the defendants or either of them], by reason of the said injunction, and to report the same to the court [and that days' notice of the hearing, to C. D. and E. F., the sureties named in the undertaking given on obtaining said injunction, be given by depositing in the post-office, in the city of , at least [six] days before such hearing, two notices of such hearing each contained in a securely closed post-paid wrapper directed respectively to said C. D. and E. F., at

].

Enter: [signature by initials of name and title of judge.]

1 Usually it will be well to move on affidavit also, stating the condition of the cause.

Notice must be given to the plaintiff. Notice to the sureties is not essential, but rests in the discretion of the court. Methodist Churches of New York . Barker, 18 N. Y. 463.

2 The papers must be entitled in the action, though final judgment has been entered. Wilson . Dreyer, 65 App. Div. 249, 72 N. Y. Supp. 578.

A defendant who was enjoined and obeyed the injunction, may make this motion even though he did not appear in the action. In such case let his notice of motion include appearance of his attorney. All of several defendants enjoined should unite in the motion, or, if any refuse, they should be served with notice of the motion. 3 See note to next Form.

4 Under N. Y. Code Civ. Pro., § 623, this order is made by the court, in which was the action wherein the injunction order was granted; and it is discretionary with the court whether the order shall be upon notice to the sureties upon the undertaking.

The court may direct the mode of giving notice of hearing. Code Civ. Pro., § 623.

The order should require notice of hearing, especially where the motion for the reference was made without notice to the sureties. See Wilde v. Joel, 15 How. Pr. 320; Hoffm. Pro. R. 333.

The order of reference should not contain directions that the plaintiff pay the damages when ascertained by the referee. Harter r. Westcott, 12 Misc. 180, 32 N. Y. Supp. 111; aff'd, 155 N. Y. 211.

FORM No. 673.

Notice to sureties of reference or writ of inquiry to ascertain damages caused by injunction.5

[Title of court and action.] Please take notice, that on the

in

day of

19 at

a hearing will be had before R. F., Esq., a referee duly appointed by this court [or, before the sheriff of county and a jury summoned by him pursuant to a writ of inquiry issued by this court], in the above action, to ascertain and determine the damages sustained by reason of the injunction heretofore granted herein.

Report of referee as to damages caused by injunction.7

[Title of court and action.]

The undersigned, to whom it was referred by an order dated the day of 19, to ascertain and determine the damages sustained by the defendants [or, either of them] by reason of the injunction granted in this cause on the day of 19, and to report the same to the court, respectfully

reports:

I. That before proceeding with said reference, I took the oath required by law, which is hereto annexed and made part of this my report.

II. That the following persons appeared before me upon the said reference:

A. T., Esq., counsel for the plaintiff; Z. T., Esq., for the defendants; and M. N., the surety upon the undertaking given upon issuing said injunction [or in default of appearance of any one to whom notice was required, say: and the defendant produced

5 It is the fairer course to give this notice. Jordan v. Volkenning, 72 N. Y. 300.

6 The court may order either. Code Civ. Pro., § 623.

7 Sustained in Matthews r. Murchi son, 14 Abb. N. C. 512, n.