
    In the Matter of the Application of Gus Reed, Appellant, for a Reference to Ascertain Damages Sustained by Reason of an Injunction Granted in the Action of Lew Dockstader against Gus Reed. Lew Dockstader, Respondent.
    First Department,
    May 22, 1908.
    Injunction—reference to ascertain damage — expense of contesting injunction.
    Where an order continuing an injunction pendente lite has been reversed and the plaintiff thereupon discontinues the action, the defendant is entitled to an order of reference to ascertain the damage suffered by reason of the injunction.
    This is true although the defendant has not in fact been restrained from doing anything owing to a stay of the injunction pending an appeal, for he has been put to exxrense by the issuance of the injunction and by the successful effort to vacate it. Such expenses are damages suffered in consequence of the injunction.
    Appeal by Gus Reed, the defendant above named, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of JSTew York on the 27th day of March, 1908.
    
      Charles Goldzier, for the appellant.
    
      Henry J. Goldsmith, for the respondent.
   Scott, J.:

The defendant appeals from an order denying his motion for a reference to ascertain the damages suffered by reason of an injunction. An action was brought by one Lew Dockstader against the appellant. A preliminary injunction was granted restraining the appellant from doing certain things until “the hearing and decision of the Court upon this application.” The injunction order contained the usual directions to the appellant to show cause why the injunction should not be continued during the pendency of the action. Before the return day the appellant obtained ex parte a modification of the injunction. On argument the injunction as originally granted was continued pendente lite, but its operation was suspended pending an appeal. Upon appeal the order was reversed, (see Bockstader v. Reed, 121 App. Div. 846) and thereupon the plaintiff by an ex parte order discontinued the action. This was equivalent to a final determination that the plaintiff had not been entitled to the injunction, and the appellant thereupon became entitled to such damages as he had suffered by reason of it. It is true that he had not been in fact restrained from doing anything, but he was necessarily put to expense by reason of the issuance of the injunction and in the ultimately successful efforts to vacate it. These expenses certainly were damages suffered in consequence of the injunction. (Perlman v. Bernstein, 93 App. Div. 335; 179 N. Y. 531.)

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, Laughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  