Eliza H. Disbrow, Respondent, v. Edwin C. B. Garcia et al., Appellants

Eliza H. Disbrow, Respondent, v. Edwin C. B. Garcia et al., Appellants. On an assessment of damages upon an undertaking given upon the granting of a temporary injunction, counsel fees upon trial are not allowable save where they are incurred solely or principally because of the injunction. In an action to determine the title of personal property, a temporary injunction was obtained restraining the disposition of the property during the pendency of the action, and a motion to dissolve the injunction was denied, not upon the merits or for irregularity, but because the court determined to defer inquiry into the merits until the trial, and upon the trial the complaint was dismissed. (Argued March 26, 1873; decided May 6, 1873.) Held, that upon assessment of damages defendants were not entitled to counsel fees upon trial, or the taxable costs in the action, as the principal question determined was as to' the title to the property, not as to the right to the use and disposition thereof during the pendency of the action. (Andrews, Bee'r, y. GlenmMe Woolen Go., 50 N. Y., 282, distinguished.) This was an appeal from an order of General Term affirming an order of Special Term, allowing exceptions to referee’s report, upon assessment of damages upon an undertaking given upon the issue of a temporary injunction. The action was brought to determine the title to a $10,000 Monroe county bond. Plaintiff obtained a temporary injunction restraining the disposition thereof during the pendency of the action. A motion was made on behalf of defendants to dissolve the injunction. This motion was denied, the court declining to look into the merits, but ordered a reference of the issues in the action. Upon the trial the complaint was dismissed. Defendants applied for an extra allowance ; $500 was granted, the order containing this clause: “This is intended to cover all allowance of extra costs, to be made in any event, in this action to defendants.” This • order was accepted, and the extra allowance received by defendants’ attorneys. A reference was then had to determine the damages upon the injunction. The referee allowed counsel fees upon motion to dissolve, also counsel fees upon trial and upon appeal, and the taxable costs in the action. Held, that defendants were in any event only entitled to the expenses of the motion to dissolve the injunction, and were not entitled to that here, as it appeared by the order granting the extra allowance that it was* intended to embrace them. That in the case of Andrews, Hedr, v. Glenville Woolen Go. (50 N. Y., 282), the trial was necessary, principally to dispose of the injunction. Here the prominent question upon the trial was the title to the bond, and the expenses then incurred were not occasioned solely or principally in consequence of the injunction, but would have been required had there been none. Martin W. Cooke for the appellants. W. W. McDonald for the respondents. [MAJORITY — Eolgeb, J.,] Eolgeb, J., reads for affirmance. All concur, Chüboh, Ch. J., not sitting. Order affirmed.