
    Thomas Foley, Resp’t, v. Theodore H. Schiedemantel et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 8, 1892.)
    
    1. Injunction—Undertaking—Decision as to bight to injunction.
    A verdict and judgment rendered in favor of defendant in an injunction suit after a preliminary injunction has been vacated, is a final decision that the plaintiff was not entitled to the injunction.
    .2. Same—Evidence—Amendment op pleading.
    .In an action on an undertaking given on the issuance of an injunction evidence to show that defendants’ signatures to the undertaking were procured by misrepresentation is inadmissible unless pleaded in the answer; and as such matter would constitute a new defense the answer cannot be amended so as to include it.
    Appeal from judgment in favor of plaintiff entered on verdict directed by the court.
    
      John B. Abney, for app’lts; Calvin D. Van Name (S. F. Bawson, of counsel), for resp’t.
   Dykman, J.

This action is brought upon an undertaking made by the defendants upon an application for an injunction in .an action in which Sarah A. Burke and Mary Burke were plaintiffs, and Thomas Foley and John Foley were defendants, to bar the defendants from all claim to certain real property and to restrain them from interfering with the same.

The instrument was in the usual form, ánd by it the defendants undertook to pay the defendants m that action such damages as they might sustain by reason of the issuance of an injunction then applied for, not exceeding $250.

A preliminary injunction was obtained which was subsequently vacated, except as to the house on the premises, and after that the cause was tried at the circuit and a verdict was rendered for the defendants.

Upon the trial of this action the defendants’ counsel, at the close of the plaintiff’s case, moved to dismiss the complaint on the ground that it.had not been shown that the court had finally decided that the plaintiffs in the injunction suit were not entitled to-the injunction. That motion was: denied and the defendants excepted.

Then the counsel for the defendants offered to show misrepresentation in the procurement of.the signatures to the bond. That, was denied as inadmissible under the pleading, and the defendants, excepted. Then the counsel for the defendants moved to amend the pleading in that respect, and that motion was denied also, and there was an exception.

Then the court directed a verdict for the plaintiff for the full amount of the undertaking, to which the defendants excepted.

In relation to the first point it is sufficient to.say that the verdict and judgment in the injunction suit in favor of the defendants! was a final decision that the plaintiffs were not entitled to the injunction. Pacific Mail S. S. Co. v. Toel, 85 N. Y. 646; Vanderbilt v. Schreyer, 28 Hun, 61.

The matter offered in evidence as a defense was not set up in the answer and .was properly rejected for that reason, and as it. constituted a new defense the refusal to permit an amendment of 'the answer so as to include it was properly refused.

The judgment and order denying .the motion for a new trial. should be affirmed, with costs.

Barnard, P. J., and Pratt, J., cóncur.  