
    The Apollinaris Co., Limited, App’lt, v. George W. Venables et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    Injunction—Damages—Determination as to right to.
    Where the gravamen of the action is the plaintiff’s right to an injunction, a judgment dissolving a preliminary injunction and dismissing the complaint is an adjudication that no Tight to the preliminary injunction ever existed, and entitles the defendant to a reference to ascertain the damages sustained thereby.
    Appeal from order appointing a referee to ascertain and assess-the damages sustained by the respondent by reason of the preliminary injunction issued herein.
    
      H. Melville, for app’l-t; I. A. Fnglehari, for resp’
   Per Curiam.

The appellant, a foreign corporation, brought this action to restrain the respondents from using certain labels which the complaint alleged infringed upon its trade mark rights. On motion of the plaintiff a preliminary injunction was issued and subsequently an order was made dissolving the injunction and dismissing the complaint, and a final judgment was entered dissolving such injunction and adjudging that the complaint be dismissed, with costs. Thereupon this motion was made and granted.

It is urged that the court had no power to grant this motion, because there had been no decision as to the plaintiff’s rights at the time the injunction was granted, and our attention is called to the cases of Palmer v. Foley, 71 N. Y., 106; Musgrave v. Sherwood, 76 id., 194; Benedict v. Benedict, id., 600; Johnson v. Elwood, 82 id., 365; and Delafield v. Commercial Tel. Co., 22 Abb. N. C., 450. But it will be observed, upon an examination of those cases, that they have no application to the state of facts presented by the record upon this appeal.

It appears that the gravamen of the action was the plaintiff's; right to an injunction, and that the preliminary injunction was-granted upon the theory that the plaintiff had a good cause of action for a permanent injunction as against the defendants. It. was not auxiliary to the cause of action declared upon in the complaint, but, as already stated, was the cause of action.

The action was instituted for the purpose of obtaining this permanent injunction. When, therefore, by the judgment of the-court the preliminary injunction was dissolved and the complaint: dismissed, it was an adjudication by the court that the plaintiff had no right to maintain this action for an injunction. And it. was therefore an adjudication that as the preliminary injunction •depended upon the right to maintain the action for a permanent injunction, no right to the preliminary injunction ever existed.

It would seem, therefore, that the order was properly made and .should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.  