
    DE FOREST against BAKER.
    
      New York Superior Court ;
    
    
      General Term, November, 1863.
    Complaint upon undertaking.—Allegation of Dissolution OF INJUNCTION.-JUDGMENT AFTER ANSWER STRUCK OUT.
    In an action upon an undertaking which was given upon issuing an injunction, and was conditioned to pay all damages sustained thereby “ if the Court shall finally decide that the plaintiff (in the injunction suit) was not entitled thereto,” if the complaint avers that judgment has been rendered in the injunction suit, in favor of the defendants, but does not disclose the ground of the judgment, nor aver in terms that the Court has decided that the plaintiff therein was not entitled to the injunction, an answer merely denying that it has been so decided, and that the present plaintiff has been damnified, and that defendant is indebted to him, is not irrelevant, but raises a material issue.
    
      Nor is it shown to be sham, by an affidavit stating that the complaint in the injunction suit was dismissed, but not disclosing on what ground.
    When an answer is struck out as sham and irrelevant, the proper method of obtaining judgment is proceed as if no answer had been put in. If the summons be for relief, the defendant is entitled to the usual notice of application for judgment, after the answer has been stricken out.
    Appeal by the defendant Baker, from an order striking out his answer in the action,- and giving judgment.
    The action was brought by Benjamin DeFobest and Charles L. Rowan, against Alexander Strong- and Charles W. Baker, to recover on an undertaking given by the defendants, upon the issuing of an injunction against the plaintiffs, in an action previously brought against the latter in the Supreme Court, by one Robert Strong.
    The complaint in the present action averred the commencement of the injunction suit, and the giving of the undertaking, which was in the usual form.
    The other allegations of the complaint which were drawn in question, and those of the answer, are stated in the opinion of the Court. The complaint demanded judgment for five hundred and seventy dollars, the amount awarded as damages by a reference in the usual manner in the Supreme Court.
    The plaintiffs moyed to strike out this answer as sham and irrelevant, and for judgment. The motion was founded on the pleadings and on an affidavit by Samuel Brown, their attorney, stating that the complaint in the injunction suit “ was dismissed, and judgment thereupon entered in favor of the plaintiffs, against said Robert Strong, as referred to in the complaint in this action.” It also set forth the proceedings upon the reference and the order confirming the award, and allowing the present plaintiffs to sue therefor. Among the papers produced also were papers in an appeal from such order lin the Supreme Court, and an undertaking given thereon to |secure a stay of proceedings on the order, i The motion from which the present appeal was taken was heard before Mr. Justice Moncrief at Special Term, who granted it, July 1, 1863.
    
      M. J. Bacon, for defendant appellant.
    
      I. The appeal (with undertaking) from the order of the Su. preme Court, stopped all proceedings under that order (Code, § 342).
    II. The answer was a good and sufficient defence, and should not have been strúck out as frivolous, because on its face it was not taken merely for delay (2 Abb. Pr., 414; 12 How. P., 543).
    II. Upon its face, and in fact and law, the answer is a perfect and complete defence, especially as it was accompanied with an affidavit of merits. Unless apparent that it was not interposed in good faith (2 Sandf., 680).
    
      Samuel Brown, for plaintiff respondent.
    The only question before the Court at Special Term was the character of the answer inteiposed on behalf of defendant Baker.
    There was no evidence before the Court that an appeal had been taken from the order made by the Supreme Court, or that the proceedings in that Court had been stayed by security or otherwise; or that any stay had been applied for, or granted in this Court, and the fact was otherwise.
    I. The answer does not take issue upon any material allegation on the complaint.
    The defendant on the hearing of the motion did not deny that the complaint in the original action had been dismissed, and that judgment had been rendered and entered for defendant as alleged in the complaint.
    Nor does the answer deny that by an order of the Supreme Court made in pursuance of the terms of the undertaking the damages of plaintiff were assessed at five hundred and seventy dollars.
    II. The second allegation of defendants’ answer is evasive and irrelevant and false. The dismissal of plaintiffs complaint, and rendition and entry of judgment for defendant as set foz-th in the complaint, was the final decision referred to in the undertaking, and was conclusive evidence on this point (Loomis v. Brown, 16 Barb., 325 ; Weeks v. Southwick, 12 How. Pr., 170; Mutual Safety Insurance Company v. Roberts, 4 Sandf. C. R., 592; Hoyt v. Carter, 7 How. Pr., 140); the defendant subsequently submitting to a reference was also evidence of the final determination of the argued action.
    
      TTT. The defendant’s denial that plaintiff had suffered any damage, was also false in fact. Because defendant admits that the damages were assessed by the Court in a proceeding in which they opposed his motion. and litigated the question of damage.
    IY. The extent of defendant’s liability was fixed by the proceedings in the Supreme Court, and in this action they would only be allowed to plead new defences to their liability on the undertaking (Methodist Churches v. Barker, 18 N. Y., 463 ; Wilde Joel, 15 How. Pr., 320.)
    Y. The defendant’s answer was sham and irrelevant, and the order should be affirmed with costs (Lee Bank v. Kitching, 7 Bosw., 664; Edgerton v. Smith, 3 Duer, 614; Kurtz v. McGuire, 5 Duer, 660; The People v. McCumber, 18 N. Y., 315.)
   By the Court.—Bosworth, Ch. J.

The complaint avers that judgment has been rendered in the injunction suit in favor of the defendants, therein, and the judgment roll filed, &c., “ whereby it appears that said Robert Strong (the plaintiff in the injunction suit) was not entitled to said injunction.”

The answer, alleges, second, that the defendant, “ denies that it has been decided" that said Robert Strong in said complaint mentioned was not entitled to the injunction in said action.” If it was not in fact so decided, or if the judgment rendered does not import that, in legal effect, then the defendants are not liable.

It is not stated, in what manner, or on what grounds the judgment was rendered, nor is it stated that the Court decided that Strong was not entitled to the injunction, unless such a statement is involved in the allegation, “ whereby it appears that said Robert Strong was not entitled to said injunction.”

If the judgment was rendered on a trial of the action on the merits of the case made by the complaint, or on a dismissal of the complaint for want of prosecution, then the injunction would be dissolved by the judgment rendered, and the judgment would be a final determination of the rights of the parties in that action (Code of Pro., § 245 ; Carpenter v. Wright, 4 Bosw., 655).

But judgment may have been given for the defendants in that suit, solely by reason of matters of defence arising after suit brought, and on grounds conceding that the injunction was rightly issued.

Whether the plaintiff means by the words, whereby it appears that said Eobert Strong was not entitled to said injunction,” that such a result is manifested by the mere fact that judgment was given for the defendants, irrespective of the grounds of the judgment; or that the record discloses that the Court so adjudged, it is not easy to determine. I think, however, that he does not mean to allege in the use of those words, that the Court has in terms so decided. It is certainly not averred in terms, that the Court did so decide : the answer, substituting “ says ” for “ denies,” would contain a direct and unequivocal avennent that the Court has not so decided. And this is broad enough to exclude the fact of a decision to that effect, either in terms or legal effect.

This is not an irrelevant allegation, nor is it sham in the sense that it is shown to be untrue. Hot being irrelevant, nor shown to be untrue, it cannot be stricken out on motion:

The affidavit of Mr. Brown the plaintiff’s attorney, states that the complaint in the injunction suit was dismissed; but does not say whether it was for want of prosecution, or on what ground.

The defendant’s counsel insisted on the argument that it was dismissed for want of prosecution, and his view is, that a judgment for the defendants on that ground is not a final decision that the plaintiff was not entitled to the injunction, within the meaning of the undertaking.

In that I think he is mistaken (Code, § 245 ; 4 Bosw., 655). If his answer be stricken out as sham, he cannot test the accuracy of his views. It is not sham, if his view of the law is correct, and the judgment proceeded on the grounds stated.

But inasmuch as the complaint does not show on what grounds the judgment was rendered ; and the answer avers in substance that it has not been decided that Strong was not entitled to the injunction ; the latter averment presents an issue, on the decision of which the question of the defendant’s liability depends.

And as the pleadings present this question, it cannot be said that the allegation, denying the defendant’s indebtedness, or that the plaintiffs have sustained damages within the meaning of the undertaking, is false or irrelevant.

If it has not been finally decided in the injunction suit that Strong was not entitled to the injunction, within the meaning of the words, “ finally decide,” as used in the Code and the undertaking, then it follows that these plaintiffs have not in judgment of law, sustained damages by reason of the injunction, and the defendants are not indebted to them.

The order appealed from strikes out the answer as sham and irrelevant, and orders “ judgment as demanded in. the complaint.” When an answer is thus stricken out, the plaintiff proceeds to perfect judgment, precisely as'if no answer has been put in.

The summons in this case is one for relief. The clerk cannot enter judgment under § 246 of the Code, because there is no “ amount mentioned in the summons.”

As the plaintiffs must apply to the Court for the relief demanded in the complaint, the defendants are entitled to eight days’ notice thereof (Code, § 246, sub. 2). This notice cannot be given until the action is in such a stage that it can: truly be said that an answer is due, and there is no answer in the action.

I think this order should be reversed.

Ordered accordingly. 
      
       Present, Bosworth, Cli. J., White and Monell, JJ.
     