Allen Benedict, Respondent, v. S. Miller Benedict, Appellant

Allen Benedict, Respondent, v. S. Miller Benedict, Appellant. An order of reference to ascertain the damages sustained by defendant, by reason of an injunction, recoverable upon an undertaking given under the Code of Procedure (Old Code, § 222), cannot be granted until it has been determined by judgment or other decision of the court that plaintiff was not entitled to the injunction; it is not sufficient that this appears by the facts developed upon the trial. In an action to enforce specific performance of a parol agreement made by defendant to reconvey certain real estate conveyed by plaintiff to him, for which he had not paid, two preliminary injunctions were granted. The referee found the agreement void, but that plaintiff had a lien for the purchase-money and directed a sale thereof. In neither the report nor the judgment entered thereon was any reference made to the injunctions. Held, that an order of reference to assess defendant’s damages by reason of the injunctions was improperly granted, as it had not been decided by the court that plaintiff was not entitled thereto. It seems, that defendant might have moved, before the entry of judgment, that a clause be inserted therein to the effect that plaintiff was not entitled to the injunctions, or he could have moved after judgment, upon the findings of the referee, for an order setting aside the injunctions. (Argued January 28, 1879; decided February 11, 1879.) This was ail appeal from an order of General Term, reversing an order of Special Term appointing a referee to ascertain defendant’s damages sustained by reason of two preliminary injunctions issued herein. (Reported below, 15 Hun, 305.) The nature of the action and the holdings are stated above, the court approving of the opinion below. C. D. Adams for appellant. Cornelius E. Stephens for respondent. [MAJORITY — Per Curiam] Per Curiam opinion for affirmance. All concur. Order affirmed.