
    JOSEPH W. BRAY v. CORNELIUS POILLON and another, Respondents.
    Appeal from an order denying a motion, made by Henry Volkening, to set aside an assessment of damages against him, upon an undertaking given in this action, to procure an injunction. This action was decided in favor of the defendants, and the judgment contained an order referring it to Willard Bartlett, Esq., to ascertain and report the damages sustained by the defendants, by reason of the preliminary injunction. The referee reported the damages at $3,805.55, and his report was confirmed. No notice of the proceedings before the referee, was given to Volkening. Volkening, one of the sureties, was sued to recover the amount, and now moves to vacate the assessment of damages. Lawrence, J., says: “ I am in favor of affirming the order appealed from.
    “ 1st. If the surety, Volkening, was induced to execute the undertaking by fraud or misrepresentation, he can fully protect himself by setting up the facts attending the execution of the instrument, as a defense to the action which has been commenced against him, and which is still pending.
    “ 2d. I think that the damages were properly assessed on the reference.”
    
      Nelson Smith, for Volkening, the appellant.
    
      George H. Forster, for the respondents.
   Opinion by Lawrence, J.

Daniels, J., concurred.

Order affirmed.  