
    William A. Grainger, Resp’t, v. Thomas A. Smyth et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1893.)
    
    Injunction—Damages.
    In an action for dissolution of a copartnership and an accounting, the complaint asked for a temporary injunction, which was granted. The answer denied the allegations of the complaint, and set up a counterclaim. On the trial judgment was entered dismissing the complaint and awarding judgment on the counterclaim for defendant. Held, that this was a final determination that plaintiff was not entitled to the injunction within the meaning of the provision of § 620 of the Code, authorizing the recovery of damages sustained by reason of the injunction in such a case.
    Appeal from an order of the Monroe special term, denying a motion to confirm the report of a referee appointed to ascertain the damages sustained by the defendants by reason of a temporary injunction issued in the action.
    
      Richard Van Voorhis, for app’lts; John M. Murphy, for resp’t.
   Haight, J.

This action was brought to dissolve a copartnership and for an accounting. The plaintiff asked for a temporary injunction restraining the defendants from collecting, receiving, or in any manner interfering or meddling with or disposing of the partnership debts, moneys, notes or other property, and that a receiver be appointed. A temporary injunction was issued upon the complaint and the affidavit of the plaintiff verifying the matters alleged therein, which was served with the summons and complaint. The defendants answered putting in issue the allegations of the complaint upon which the plaintiff’s right of action depended, and setting up a counterclaim. Upon a stipulation of the parties the case was referred to a referee to hear, try and determine. Upon the day appointed for the trial before the referee the parties appeared by their attorneys, but the attorney for the plaintiff submitted no evidence in support of the allegations of his complaint. The defendants produced testimony sustaining their counterclaim, and thereupon the referee made his report, upon which judgment was entered dismissing the plaintiff’s complaint and awarding judgment in favor of the defendants for the amount of their counterclaim.

Thereafter, upon the motion of the defendants, an order of reference was made to ascertain the damages sustained by them by reason of the temporary injunction. A hearing was had before the referee, who made his report to the effect that the defendants had suffered damages in the sum of $173. A motion was thereupon made at the Monroe special term to confirm the report, and it was thereupon “ordered that the motion to confirm said report be, and the same is hereby denied upon the ground that it does not appear from the judgment in the action that the court has decided that the plaintiff was not entitled to such injunction order, and therefore the defendants are not in a position to demand any damages by reason of such injunction order.” From this order the defendants appeal to this court.

It has been held that where the parties voluntarily settle the action, or where the same has been discontinued upon the application of the plaintiff, or where the same has abated on account of the death of a party, an order of reference will not issue to ascertain the damages sustained by reason of the injunction under § 623 of the Code of Civil Procedure, for the reason that the court has not finally decided that the plaintiff was not entitled thereto under the provisions of § 620. Palmer v. Foley, 71 N. Y., 106-111; Hall v. Sexton, 19 St. Rep., 677; S. C., 3 N. Y. Supp., 549 ; Johnson v. Elwood, 82 N. Y., 362; N. Y., W. S. & B. R. Co. v. Omerod, 29 Hun, 274.

But in the case of the Pacific Mail Steamship Co. v. Toel, 85 N. Y., 646, it was held that where a plaintiff who has obtained a preliminary injunction, after it has been served, enters an order vacating it, and subsequently, without the consent of the defendant, obtained an ex parte order discontinuing the action, these orders are equivalent to a determination that the plaintiff was not entitled to the injunction, and defendant is entitled to an order of reference to ascertain his damages by reason thereof.

In Amberg v. Kramer, 8 N. Y. Supp., 821; 29 St. Rep., 958, it was held by the first department, that where a temporary injunction had been vacated upon the application' of the defendant, the plaintiff consenting thereto and the action having been discontinued by the plaintiff, that there had been a determination that the plaintiff was not entitled to the injunction and that the defendant was entitled to his order of reference. And in Manufacturers & Traders’ Bank v. Folk, 21 N. Y. Supp., 806; 50 St. Rep., 802, it was also held by the first department, that where the temporary injunction is granted upon the complaint, that the plaintiff’s right thereto depends upon the establishment judicially of the facts pleaded, and the dismissal of the action for want of prosecution is a final decision within the provisions of the Code. See also Weeks v. Southwick, 12 How. Pr., 170; Taaks v. Schmidt, 19 id., 413; Cunningham v. White, 45 id., 486; Carpenter v. Wright, 4 Bos., 655.

In the case of Benedict v. Benedict, 15 Hun, 305, affirmed 76 N. Y., 600, the action was brought to compel a specific performance of a verbal agreement to convey real estate, and a temporary injunction was obtained restraining the defendant from encumbering the place or collecting rents thereon pending the trial. Upon the trial the referee decided that the agreement was void, but held that the plaintiff had a vendor’s lien upon the land which he directed to be foreclosed, and ordered a sale as in case of a mortgage, making no reference or direction as to the injunction. In that case it was held that the judgment did not determine that the plaintiff was not entitled to the injunction. This, however, was made upon the ground that the judgment was really a determination in favor of the plaintiff, and is not in conflict with the cases above cited.

Upon the case under consideration, as we have seen, there has been a judgment entered after trial dismissing the plaintiff’s com plaint. This is a final determination that the plaintiff had no cause of action. If he had no cause of action he had no right to a temporary injunction. It follows that the judgment is a final determination by the court that the plaintiff was ' not entitled, to the injunction within the meaning of the provisions of the Code referred to.

The order of the special term should be reversed, with ten dollars costs and disbursements, and the motion granted.

Lewis and Bradley, JJ., concur.  