
    NINTH AVENUE R. R. CO. v. N. Y. ELEVATED R. R. CO.
    
      N. Y. Common Pleas; Special Term,
    September, 1877.
    Damages.—Injunction.—Einai Decision. •—Reference. —Remittitur. ■—Sureties . —Undertaking.
    Where sureties on an undertaking given on obtaining a preliminary-injunction, by the terms thereof, were liable “if this court shall finally decide that the plaintiff was not entitled to the injunction, ” and the court at special term so decided, and at general term affirmed that judgment, and an appeal was taken to the court of appeals; Held, on a motion for a reference to ascertain the damages, sustained by defendant, that the decision of the court of appeals, when the remittur is sent down, should be deemed the final decision of the court.
    
    Motion by defendant for an order of reference to-ascertain the damages sustained by defendant by reason of a preliminary injunction.
    On the hearing of the motion, the facts developed, were, that on May 15, 1876, a preliminary injunction was granted in this action, by Judge J. P. Daly, restraining the defendant from constructing or operating any new or additional railway structures, during thependency of the action or until the further order of the court. No motion to dissolve the injunction was made, except at the trial of the case.
    The plaintiff, on obtaining the injunction, gave an undertaking with sureties, in the amount of $1,000. After trial of the action, but before judgment, a motion was made on behalf of defendant, at special term, before Judge Van Hoesen, that plaintiff be required to file additional security, but such motion was denied. The cause was tried before Judge Van Hoesen, who rendered decision in the month of August, 1876, dismissing the complaint, and judgment was entered on that decision in favor of defendant. An appeal was taken to the general term by the plaintiff, and the judgment was affirmed; and thereupon the defendant noticed this motion for a reference to ascertain the. damages sustained by the defendant. After said motion was noticed, but before the argument, the plaintiff appealed to the court of' appeals from the decision of the general term of this court. The motion was opposed on two grounds : first, that an appeal having been perfected to the court of appeals, the motion was premature, the condition of the undertaking being that the plaintiff should pay if the court should finally decide that the plaintiff was not entitled to the injunction ; and second, if the court should decide the first point not well taken, then the plaintiff insisted that the. motion should be denied on the ground that a reference was unnecessary, the plaintiff being willing to concede that the defendant had sustained damages to the amount of $1,000, which was the limit of the liability of the plaintiff or the sureties in the undertaking, in consequence of the injunction.
    
      Dudley Field, for defendant.
    
      John M. Scribner, Jr., for plaintiff.
    
      
       This decision applies equally under the Code of Civ. Pro. § 620.
    
   J. F. Daly, J.

The sureties, by the terms of their undertaking, are liable “if this court shall finally decide that the plaintiff was not entitled to the injunction.” The special term so decided, and the general term affirmed the judgment of the special term. An appeal to the court of appeals has been perfected by plaintiff. Otherwise the condition of the undertaking would seem to have been fully satisfied by the decision of our general term, and defendants would seem to be entitled to their order for assessment of damages, without being compelled to await the result of the appeal to the court of last resort. But the decision of the court of appeals, when the remittitur is sent down, is made and entered as the judgment of this court, in fact and effect, and when an appeal is taken to the court of appeals, should be deemed to be the final decision intended by the undertaking of the sureties.

Motion denied. No costs.  