
    DELAFIELD v. COMMERCIAL TELEGRAM COMPANY.
    
      New York Common Pleas, General Term ;
    
    
      January, 1889.
    1. Injunction; reference.to determine amount of damages.] A reference 1 to determine the amount of damages sustained by an injunction, which -has been dissolved, will not be granted after judgment dismissing the action without making any provision on the subject; nor will the case be reopened for the purpose of ordering a reference to ascertain the damages.
    2. Forms.] Form of injunction against withholding telegraph ticker.
    Appeal from order.
    Tallmadge Delafield, Jr., a stockbroker, brought this action against the Commercial Telegram Company to enjoin the defendants from removing its printing telegraph instrument or ticker from plaintiff’s office and to restrain defendants from doing anything by which plaintiff, by means of such instrument, might not receive the stock exchange quotations. The action was founded not on contract but on the claim that the public, including the plaintiff, had a right to, and the defendants by law and by their charter were required to continue the facilities in question.
    Upon affidavits to the circumstances under which defendant had taken its instrument out of plaintiff’s office and to its disclaimer of any fault to find with defendant and its declaration that the only reason for removing it was an order from the secretary of the Stock Exchange,—a preliminary injunction was granted.
    
    
      There was a contract between the parties, but after the commencement of action, plaintiff gave notice terminating the contract pursuant to its terms.
    
      Thereafter, the injunction was vacated by the court.
    The defendant then moved for and obtained leave to make a supplemental answer, and the supplemental answer put in showed the termination of the contract and the vacating of the injunction.
    The order vacating the injunction was expressed to be “ without prejudice to any of the rights of the plaintiff on the trial of this action, and without deciding that the plaintiff was not originally entitled to the injunction herein.”
    On the trial, the plaintiff brought on the action at the equity term, and his counsel, in opening the case, said that lie asked no relief, but claimed that having been compelled in self-defense to' terminate the contract, the plaintiff should not be charged with- costs of the action ; but the question should be determined according to the situation of the parties at the time the action was commenced.
    The court, Larremoee, Oh. J., held that the action must be dismissed with costs, but declined to insert in the decision' a provision that it should be without prejudice to the right of the plaintiff to insist thereafter that he was originally entitled to the injunction.
    The defendant thereupon entered judgment, dismissing the complaint with costs, and thereafter moved that the cause be re-opened for further proof upon, or a reference be ordered to hear and determine, the question whether the plaintiff was entitled to the injunction order bearing date the 23d day of March, 1885, and obtained by him at the commencement of this action, and that the entry of any decree or judgment in this action should be stayed until the coming in of such report, and that the final decree or judgment to be entered should contain a recital in conformity with any report that may be made on such reference, and for other or further relief.
    The motion was denied, and the defendant appealed to the general term.
    
      Robert R. ELarloio (James E. Chandler, attorney), ■ for the defendant appellant,
    cited Benedict v. Benedict, 15 Hun, 305; aff’d in 76 N. Y. 600; Palmer v. Foley, 71 N. Y. 106 ; Matter of City of Buffalo, 78 Id. 362, 370; Hatch v. Central Nat. Bk., 78 Id. 487.
    
      Eugene Prayer ( Warner & Frayer, attorneys), for the plaintiff respondent,
    cited Jordan v. Van Epps, 85 N. Y. 427, 436; Clemens v. Clemens, 37 Id. 59, 74; Benedict v. Benedict, 76 Id. 600; Newton v. Russell, 87 Id. 527, 531; Randall v. Carpenter, 88 Id. 293; Brinkley v. Brinkley, 56 Id. 192; Central Trust Co. v. N. Y. City & Northern R. R. Co., 18 Abb. N. C. 64; Id. 381.
    
      
       The ordering part of the injunction was as follows:
      “ ORDERED that the defendant, The Commercial Telegram Company, its officers, agents, servants, employes, and representatives refrain from neglecting or refusing to furnish to the plaintiff, Tallmadge Delafield, Junior, regularly at his office, at No. 52 Broad street, in the city of New York, the same New York Stock Exchange quotations and reports which said defendant furnishes or shall furnish to its other customers and subscriber's in the city of New York, and in the same manner as the same shall be furnished by it to its other subscribers and customers ; and from further disconnecting, disarranging or detaching from its regular telegraph lines or otherwise improperly interfering with the telegraphic reporting instrument or indicator heretofore, on or about January 28th, 1885, placed by said defendant in the said office of the plaintiff at No. 52 Broad street in the city of New York, and from continuing or permitting the continuance of the disconnection, disarrangement or detaching of or other improper interference with the said reporting instrument or indicator heretofore accomplished by the defendant, and from doing or permitting to be done any act or thing whereby the plaintiff, Tallmadge Delafield, Junior, shall or may fail to receive at his said office from the defendant regularly the same New York Stock Exchange quotations and reports which are or shall be furnished by the defendant to its other customers and subscribers, and in the same manner as the same are or shall be received by such other customers and subscribers, until the further order of this court in the premises ; and in case of disobedience to this order, the defendant and each and every of its officers, agents, servants, employes and representatives disobeying the same will be liable to the punishment therefor prescribed by law.”
      In a similar case in the supreme court a motion for a' preliminary injunction was denied by Mr. Justice Barrett, who assigned his reason thus
      
        Eugene Frayer (Warner & Frayer, attorneys), for the plaintiff in support of the injunction, cited: State, Trenton, etc. Turnpike Co. v. American, etc. News Co., 43 N. J. Law, 381 ; Telegraph Co. v. Griswold, 37 Ohio St. 301, 310; State ex rel. American Union v. Bell Tel. Co., 10 Cent. L. J. 438; Friedman v. Gold & Stock Tel. Co., 32 Hun, 4; True v. International Tel. Co., 60 Me. 9 ; Western Union-Tel. Co. v. Carew, 15 Mich. 525, 533; G. C. & S. F. Ry. Co. v. Levy, 59 Tex. 542, 548; Tyler v. Western Union Tel. Co., 60 Ill. 421, 437; Louisville Transfer Co. v. American Dist. Tel. Co., 14 Chic. L. News, 15 ; State ex rel. B. & O. Tel. Co. v. Bell Tel. Co., 23 Fed. Rep. 539 ; Davis v. Western Union Tel. Co., Allen’s Tel. Cases, 539; Western Union Tel. Co. v. Neill, 57 Tex. 283; Central Union Tel. Co. v. State, 110 Ind. 203; s. c., 5 Northeast. Rep. 721, 724; Ellis v. American Tel. Co., 13 Allen (Mass.) 226, 231 ; De Rutte v. N. Y. A. & B. Tel. Co., 30 How. Pr. 403, 413; s. c., 1 Daly, 546, 558; State v. Nebraska Tel. Co., 17 Neb. 126; Scofield v. Lake Shore, &c. Ry. Co., 43 Ohio St. 571; s. c., 3 Northeast. Rep. 907; State ex rel. &c. v. Bell Tel. Co., 36 Ohio St. 296 ; State ex rel. &c. v. Bell Tel. Co., 11 Cent. L. J. 359 ; Hammond v. Gold & Stock Tel. Co., N. Y. Daily Reg. March 18, 1885 ; Lane v. Newdigate, 10 Vesey Jr. 192 ; Cooke v. Chilcott, L. R. 3 Ch. Div. 694, 702 ; Cole Silver, &c. Co., v. Virginia, &c. Co., 1 Sawyer, 470 : Prime v. Twenty-third St. Ry. Co., 1 Abb. N. C. 63, 76-80; Western Union Tel. Co. v. Union Pacific Ry. Co., 1 McCrary, 558, 564; Western Union v. St. Joseph, &c. Ry. Co., Id. 565, 569.
      
        J. E. Chandler, for the defendant.
      Barrett, J.—So far as this action proceeds upon the claim for a relief against the contract, it is now without point, as the plaintiff has elected to terminate such contract. So far as it proceeds upon the general right to a continuation of the service without such a contract or upon willingness to enter into a reasonable one, the questions are too serious, and the right not sufficiently clear to justify an injunction in substance mandatory on mere motion and before trial. The plaintiff thus asks what amounts to a peremptory mandamus to compel the defendant to serve the plaintiff upon such terms and conditions as the court may think just. It is possible that this cannot be accomplished on the facts before us, without at least a full investigation at the trial at Special Term. I must say also that the authorities in this State, and especially in this department, seem to be somewhat adverse to the contention of the plaintiff’s very exhaustive and able brief. The doubt thus arising should be sufficient to require a postponement of the serious questions here presented until the trial. If the plaintiff had not terminated the contract by this notice, I might have granted an injunction pendente lite upon payment of the rate specified in the contract, without prejudice (so far as concerned such payment) to plaintiff’s ultimate rights, thus restraining any arbitrary withdrawal of service by the defendant pending the litigation. But in the present aspect of the case I see no practical course except to deny the motion fortan interim injunction, with costs to abide the event.
    
   The General Term affirmed the order appealed from with costs.  