
    David Perlman, Respondent, v. Moses Bernstein, Defendant, Impleaded with Jacob W. Hammer, Appellant.
    
      Injunction—reference to compute the damages where the action is discontinued by the plaintiff over the defendant’s objection.
    
    In an action brought to cancel a lease and to enjoin the lessees from using the leased premises as a drug store or pharmacy, the plaintiff obtained a preliminary injunction, together with an order to show cause why it should not be continued pendente lite. On the return day of the order the injunction was vacated. Prior to the trial of the action the plaintiff recovered possession of the premises in summary proceedings instituted for non-payment of rent. When the action came to trial the plaintiff, over the objection of the defendant, was allowed to discontinue it without costs upon the ground that an injunction was no longer necessary.
    
      Held, that the defendant was entitled to an order of reference to ascertain the damages which he might have sustained because of such injunction.
    Appeal by the defendant, Jacob W. Hammer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of February, 1903, denying said defendant’s motion for an order of reference to ascertain the damages sustained by him by reason of an injunction order theretofore obtained in the action.
    The action was brought against the defendants Hammer and Bernstein to cancel a lease of a store and to enjoin them from using it as a drug store or pharmacy. The plaintiff obtained a preliminary injunction against the defendants together with an order to show cause why it should not be continued pendente^ lite ; and on the return day of such order the injunction was on the motion of the defendant Hammer vacated. Before the action was tried the plaintiff brought proceedings to recover possession of the premises for non-payment of rent, and in such proceedings a final order and warrant in favor of the plaintiff and against the defendants for the recovery of the possession of the store were granted. Thereafter the action came to trial in its regular order, when the plaintiff asked the court for leave to discontinue it, without costs, upon the ground that an injunction was no longer necessary. This was opposed by the defendant Hammer, but was granted. The latter then made this motion for an order of reference to ascertain the damages alleged to have been sustained by reason of the injunction, which motion was denied, and it is from the order entered thereupon that this appeal is taken.
    
      Benjamin Patterson, for the appellant.
    
      Jacob Manheim, for the respondent.
   O’Brien, J.:

The question before the court upon the motion was whether the defendant Hammer was entitled to recover the damages which he may have sustained by reason of the preliminary injunction. This depends upon whether or not the plaintiff was entitled to that injunction; and this latter turns upon whether the discontinuance of the action upon the request of the plaintiff and against the objection of the defendant was a determination that he was not entitled to it. The Special Term thought that the discontinuance of the action under the circumstances shown was not a determination that the plaintiff was not entitled to the injunction, basing its conclusion upon the two cases of Palmer v. Foley (71 N. Y. 106) and Apollinaris Co. v. Venable (136 id. 46) and denied the motion.

A reference, however, to Palmer v. Foley (supra) will show that therein the action was discontinued by consent. Nor do we think that Apollinaris Co. v. Venable (supra) is an authority for the view taken by the Special Term because it will be noticed that the decision was limited to the facts before the court, and in the opinion it was said: The sureties upon such an undertaking may be held in some cases, although there has been no formal adjudication against the right to the temporary injunction. Where the plaintiff ecu parte, and without the consent of the defendants, enters an order vacating the injunction and discontinuing the action, this is equivalent to an ad j ndication that the plaintiff was not entitled to the injunction when granted. The purpose of requiring an undertaking would be thwarted if in such a case the sureties were not held. (Pacific Mail Steamship Co. v. Toel, 85 N. Y. 646.) ” In this latter case it was said: “ The orders vacating the injunction and discontinuing the action * * * are in effect a determination, or at least equivalent to a determination, that the plaintiff was not entitled to the injunction granted.”

When the case at bar was called for trial by reason of what occurred while it was pending, plaintiff concluded that it was unnecessary to determine the merits. Though it be held that under the circumstances the discontinuance was not in effect a determination one way or the other upon the merits, such discontinuance granted against the opposition of the defendant certainly cannot be construed into a determination that the plaintiff was entitled to the preliminary injunction, nor did it deprive the defendant of the damages which may have been suffered by reason of the preliminary in junction. We do not regard this as an open question, because in two cases in this department and one in the third department it was held on almost identical facts that the case of Palmer v. Foley (supra) did not apply, and that the defendant was entitled to an order of reference to assess the damages. The question whether the plaintiff was or was not entitled to a preliminary injunction was, on the motion for a reference, before the court, and it has been expressly held that discontinuing the action without the consent of the defendant and against his opposition is in legal effect a determination that the plaintiff was not entitled to the preliminary injunction. (Wynkoop v. Van Beuren, 63 Hun, 500; Amberg v. Kramer, 29 N. Y. St. Repr. 958; Manning v. Cassidy, 80 Hun, 127.)

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

Yah Brunt, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  