The Pacific Mail Steamship Company, Appellant, v. William Toel, Survivor, etc., Respondent

The Pacific Mail Steamship Company, Appellant, v. William Toel, Survivor, etc., Respondent. Where a plaintiff, who has obtained a preliminary injunction, after it has been served, enters an order vacating it, and subsequently, without the consent of defendant, obtains an ex pa/rte order discontinuing the action, these orders are equivalent to a determination that plaintiff was not entitled to the injunction, and defendant is entitled to an order of reference to ascertain his damages by reason thereof. (Argued June 14, 1881; decided June 21, 1881.) The defendants advertised for sale under a mortgage two steamships. The plaintiff thereupon commenced this action to restrain such sale and for other relief, and obtained a temporary injunction upon giving security in the sum of $1,000. Some days after the injunction order had been served and in force, plaintiff’s attorney entered an order vacating and discharging the injunction. After the cause was at issue and noticed for trial, plaintiff obtained an ex parte order without consent of the defendants, discontinuing the action upon payment of costs. Thereafter, upon motion of-defendants a referee was appointed to ascertain the damages sustained hy them by reason of the injunction. A hearing was had before such reféree, and he reported the damages at $4,284.25, and his report was confirmed at the Special Term. The plaintiff appealed from the order of confirmation. to the General Term, and there the damages were reduced to $1,000, the amount of the undertaking. The plaintiff then brought this appeal. The court say: “ The orders vacating the injunction and discontinuing the action entered by the plaintiff are in effect a determination, or at least equivalent to a determination, that the plaintiff was not entitled to the injunction granted. (Palmer v. Foley, 71 N. Y. 111; Benedict v. Benedict, 76 id. 600.) We cannot inquire now whether or not the plaintiff was in fact entitled to the injunction.' That matter, for the purpose of this proceeding, has been conclusively established against it. The only matter litigated before the referee was the amount of damages to be awarded to the defendants. As to that matter we do not perceive that he committed any error which has not been corrected by the General Term. The evidence warranted the amount of damages given at the General Term, and with its decision we cannot interfere ” James P. Lowrey for appellant. J. A. Shoudy for respondent. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance. All concur. Order affirmed.