
    Bray v. Poillon.
    
      Undertaking—upon injunction—defense of fraud in, can only he set up in action on—Damages—measure of.
    
    B. in an action against defendant procured an injunction therein, V. becoming security upon the undertaking given thereupon. The injunction was set aside and damages on account thereof assessed against plaintiff. Held, that V. could only in an action upon the undertaking set up fraud in its execution. He could not do so on a motion to open the assessment of damages.
    The inj unction was to prevent the dispossession of plaintiff for non-payment of rent. Held, that the amount of rent at the rate reserved in the lease while plaintiff kept possession was a fair measure of damages.
    Appeal from an order denying a motion made by Henry Volkening to open the assessment of damages upon an undertaking executed on obtaining an injunction. The action was brought by Joseph W. Bray against Cornelius Poillon and another, to restrain certain summary proceedings instituted to dispossess plaintiff of premises occupied by him. An injunction was issued in such action and Volkening became security upon the undertaking executed to obtain the same. .
    The injunction vwas afterward set aside and a reference ordered to assess the damages, which were assessed at a sum equal to the rent of the premises during the time defendants were kept from possession. Volkening moved to open this assessment.
    
      Nelson Smith, for appellant.
    
      George E. Forster, for respondents.
   Lawrehce, J.

The head-note fully states the only points that are material for publication in the opinion.

Order affirmed.  