
    The Herkimer Lumber Company, Claimant, v. The State of New York.
    No. 10333.
    (State of New York, Court of Claims,
    September, 1911.)
    Injunction — Wrongful injunction — Liability of plaintiff.
    States —■ Claims — Liability of State in general.
    Where, at the suit of the State, an injunction is granted against a defendant, although no undertaking is required, the State is, nevertheless, liable for damages sustained by the defendant, in case the court finally decides that the State was not entitled to the injunction, and the Court of Claims has jurisdiction ' of a claim for such damages.
    This is a motion to dismiss a claim for damages due to delay caused by the acts of the State and particularly by reason of an injunction order procured in an action restraining the claimant from cutting trees and timber upon certain premises in the Adirondacks and from removing logs and timber that had previously been cut.
    In accordance with the provisions of the Code of Civil Procedure no undertaking was given by the State.
    The action resulted in the claimant’s favor and it now seeks to recover the damages occasioned by the action of the State. ■
    These damages are estimated at $73,017.06, with interest from June 27, 1905.
    
      Snyder, Christman & Earle, for claimant.
    Thomas Carmody, Frank W. Brown and M. EL Quirk, for State. . ' .
   Rodekbeck, J.

There must of necessity-be the greatest latitude in the institution of legal proceedings and, therefore, in most cases no liability attaches for. damages that ' may be occasioned by such proceedings.

There are exceptions, however, and one of these exceptions relates to cases where an injunction is procured restraining one of the parties from doing certain acts. As a condition for obtaining such an injunction security is required which makes, the party procuring the injunction liable for damages that he may occasion by having procured such injunction.

The State, however, is not required to -furnish security where it has procured an injunction and tliis raises the question in this claim whether or not under such circumstances, the State having commenced an action which has resulted unsuccessfully and having caused damages to the opposite party, it is liable for such damages.

At common law it would not he liable, for no liability would exist in the case of an individual corporation except as such liability was created by the statute requiring security to be given.

The State, however, has assumed such a liability. The statute provides that this court shall have jurisdiction to hear and determine all private claims against the State and the State has consented in- all such claims to have its liability determined. Code Civ. Pro., § 264.

This liability, however, is subject to the limitation that the claimant must make out a case upon which he could recover were it an action against an individual or corporation in the ordinary courts and to do this of course he would be ■ required to .show that a liability would exist in a case where no undertaking had been given.

The statute which exempts the State from furnishing security includes a municipal corporation, in such exemption but provides that in such cases a municipal corporation shall be liable for the damages occasioned by the injunction notwithstanding the absence of the security.

This provision making a municipal corporation which embraces a county, city, town and village liable for damages occasioned by an injunction order, though no security was given in connection with it, brings the claimant within the letter and spirit of the statute which makes the State liable in cases where a recovery could be had were the action one against an individual or corporation in the ordinary courts of the State.

If this action were brought against a county, city, town or village under the same state of facts a liability would exist and under the language of the statute conferring jurisdiction upon this court and granting the consent of the State to have its liability determined, the court has jurisdiction to entertain the claim.

Motion to dismiss claim denied.  