
    FRANCIS A. PALMER, Plaintiff and Appellant, v. JOHN FOLEY, Defendant and Respondent.
    I. INJUNG TION.
    
    1. ORDER OF REFERENCE, under the undertaking, to ascertain, damages.
    1. Liability on the undertaking, effect of question as
    TO, ON THE GRANTING OR REFUSING AN ORDER OF REFERENCE.
    
      (a) If it be perfectly dear that no action will lie, the order will not be granted.
    
    
      (b) If it be not perfectly clear that no action will lie, the order will be granted.
    
    1. Doubt, what sufficient to authorize order of reference.
    See infra.
    
    2. UNDERTAKING.
    1. Right of actioi? on, questionable when. .
    
      (a) Discontinuance of the action. The plaintiff obtained an order requiring defendant to show cause why an injunction should not be granted against him, and in the meantime enjoining defendant; on this temporary injunction the undertaking in question was given; on the return of the order to show0cause, the court, after hearing both parties, ordered that the order to show cause be made absolute, and that defendant be enjoined, etc. On appeal by defendant from this order, the general term modified it, and affirmed it as modified. After this, defendant’s attorney gave a consent for the discontinuance of the action without costs. Upon this consent plaintiff entered an order of discontinuance without costs. Defendant’s attorney gave the consent on receiving $100 for costs.
    Held,
    1. That it was not perfectly clear, that there was no right of action on the undertaking.
    2. That there was enough doubt on that point to authorize an order of reference as to damages.
    Before Curtis, Ch. J., Sedgwick and Speir, JJ.
    
      Decided May 8, 1877.
    
      An appeal from an order granting a reference to ascertain damages upon an injunction. The injunction was modified, but not vacated, and leave was granted to plaintiff within ten days after service of supplemental answer, to re-enter an order dismissing the complaint on payment of costs. The supplemental answer was served, and after the ten days had expired, and the case noticed for trial and on the calendar, the attorneys assented to the discontinuance of the action, and an order was entered accordingly.
    The plaintiff, as chamberlain of the city, alleged title to the office in his own deputy, and charged the-defendant as a mere intruder. The defendant denied this and set up title to the office. A temporary injunction was issued with order to show cause. On the return of the order, being opposed by the defendant, the injunction was continued. The defendant appealed to the general term, which continued the injunction but modified it.
    The question is, did the mere consent to the entry of the order of discontinuance deprive the defendant of his right to damages.
    
      William Meredith Field, for appellant.
    
      R. W. Townsend, attorney, and A. R. Dyett, of counsel, for respondent.
   Speir, J.

It appears that the order to discontinue the action was made upon the plaintiff’s motion, and the same was discontinued upon the payment- of defendant’s costs. It is difficult to see how such a motion could be successfully opposed by the defendant. The.plaintiff would have had the right to do so upon payment, or tender of the costs.. If the defendant had sustained damages by reason of the issuing of the injunction which the plaintiff became liable to pay, the mere discontinuance of the suit by order of the court on plaintiff’s application, could not discharge that liability. The liability had already occurred, and unless the order of the court, in terms, relieved the plaintiff, he has nothing to show for his release. The plaintiff, by his application to discontinue, -waived any right he may have had to the order, and the defendant had a right to the trial of the action, and to an appeal from the judgment therein to the general term, and to the court of appeals, if the judgment had been affirmed. As the case stands, the issuing of the injunction upon obtaining sureties to the undertaking, the motion to continue, and the modification on the appeal, together with the plaintiff’s voluntary discontinuance of the suit, raise at least the presumption of liability. The measure of liability must be determined by the order of reference. The order must be affirmed with costs.

Sedgwick, J.

— There is enough doubt as to the liability upon the undertaking under section 222 of the Code, to make the case of Carpenter v. Wright (4 Bosw. 655), applicable. By that case, unless it is perfectly clear that no action will lie, the liability should be determined in an action upon the undertaking.

I, therefore, concur in affirming the order with costs.

Curtis, Ch. J. (dissenting).

The defendant’s claim for damages, alleged to have been sustained in consequence of the temporary injunction granted to the plaintiff herein, is based upon that provision in section 222 of the Code, securing such damages to the defendant, “as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto.”

So far as the temporary injunction is concerned, and it is the only one granted in the action, the decision of the court at the special term held, that the plaintiff was entitled to it; and this decision was substantially affirmed on appeal at the general term. There is no other decision by the court in respect to it. Unless the parties, by their own action, have placed the right of the plaintiff upon a different footing, it is difficult to see how the court has finally decided that the plaintiff was not entitled to it.

The only action of the parties affecting the injunction, appears in a stipulation subscribed by their respective attorneys, April 24, 1874, in these words,‘‘ On payment of $100 costs to the defendant, we hereby consent to the discontinuance of the above entitled action without costs, and that an order may be entered to that effect.”

Upon the payment to the defendant of the $100 costs, and the reading and filing of this stipulation of the parties, the court ordered the action to be discontinued.

In November, 1876, this application for an order of reference to ascertain damages by reason of the injunction was made.

By this discontinuance, the injunction with the consent of both parties ceased to be operative. The discontinuance was not the sequence of any decision or act of the court, but the carrying out simply of an agreement or bargain between the parties, that such an order should be made on the payment to the defendant of a certain sum of money, which was then paid to him by the plaintiff.

N one of the cases referred to upon the argument, disclose this state of facts, in the discontinuance of an action, or indicate that such a contract of the parties inter sese, is to be construed into, or is tantamount to, a final decision by the court, adversely to the plaintiff’ s right to an injunction.

If the defendant had wished to protect any claim for damages by reason of the injunction, he should have been careful not to have waived the condition in section 222 of the Code. The defendant was not required to sign any agreement as to terms and discontinuance, but having voluntarily done so,- there is an embarrassment in discerning how his own act in discontinuing the suit, and rendering the injunction inoperative, can be viewed as the decision of the court, that the plaintiff was not entitled to the injunction.

It is true, that the demand is somewhat stale, and made against a public officer, long after his retirement from his official position ; but those are features which I have not considered.

The order appealed from should be reversed with costs.  