
    Cornelius H. Slingerland, Appellant, v. Albany Typographical Union No. 4, Respondent, Impleaded with Thomas J. Quinn, Individually and as President of Said Union, and Others, Defendants.
    Third Department,
    September 26, 1906.
    Injunction — order vacating temporary injunction—when reference to ascertain defendant’s damage is premature.
    When an action brought to obtain a permanent injunction is pending, an order vacating a temporary injunction is not a final determination of the rights of the parties to an injunction within the meaning of section 620 of the Code of Civil Procedure, and a reference to ascertain the damages of the defendant is premature.
    Appeal by the plaintiff, Cornelius II. Slingerland, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Albany on the Ith day of June, 1906, appointing a referee to ascertain and determine the damages sustained by the defendant, the Albany Typographical Union No. 4, by reason of an injunction theretofore granted herein.
    
      Arthur Helme, for the appellant.
    
      Joseph A. Lawson, for the respondent.
   Cochrane, J.:

This is an action to restrain the defendants from interfering by intimidation or force with the employees of the plaintiff, from picketing the establishment of the plaintiff, and from inducing persons by intimidation or force not to enter plaintiff’s'employment. Pending the action an order was made enjoining the defendants from the acts above mentioned and directing them to show cause at a Special Term, why the injunction should not be continued. On the return of the order to show cause the Special Term denied the motion and vacated the injunction theretofore granted. Thereafter the order appealed from was made directing a reference to ascertain and determine the damages sustained by the respondent by reason of said injunction. On procuring such injunction plaintiff gave the undertaking required by section 620 of the Code of Civil Procedure. The action is still at issue undecided.

The.right to damages by reason of the injunction depends on said section 620 of the Code of Civil Procedure, which awards damages only when “ the court finally decides that the plaintiff was not entitled ” to the injunction. It is settled that the final decision thus referred to is the final outcome of the action and riot the order vacating the temporary injunction. (New York Security & Trust Co. v. Lipman, 83 Hun, 569; Musgrave v. Sherwood, 76 N. Y. 194; Methodist Churches of New York v. Barker, 18 id. 463.) In the case last cited it was said: The injunction, it is true, was dissolved before the judgment dismissing the complaint. But the order of dissolution was not in its nature a final determination that the plaintiff in the suit was not entitled to the injunction. An order made pending a suit dissolving a temporary injunction by no means determines that the party in whose favor it has been granted, may7 not be entitled to that relief at the final decision of the cause. It may7 be dissolved for irregularity or because the case is- badly-stated in the complaint or upon the answer of the defendant and affidavits; and yet at the final hearing it may be decided that the defendant ought to be enjoined. In most eases, therefore, if not in all, a reference ordered before judgment to ascertain the damages to be recovered upon the undertaking or security would be premature.” It follows that the order of reference was prematurely granted.

The order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. ■

All concurred.

' - Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  