
    The Apollinaris Co., Limited, App’lt, v. George W. Venable et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed November 29, 1892.)
    
    Injunction—Undertaking—Liability of sureties.
    In an action to restrain defendants from infringement of a trade mark, after a temporary injunction had been granted, the plaintiff addressed a protest to the American consul at Cologne, against his acting as a commissioner under a commission addressed to him, and on defendants’ application, an order was made, punishing plaintiff for contempt, by directing a dismissal of the complaint, and a dissolution of the temporary injunction. Held, that this did not, under the circumstances stated, either in fact or in law, constitute an adjudication that plaintiff was not entitled to the preliminary injunction, nor a breach of the undertaking of the sureties given upon the issuance thereof.
    Appeal from judgment of the supreme court, general term, first department, affirming order appointing a i;eferee to ascertain and assess the damages sustained by respondent, by reason of the preliminary injunction issued therein. '
    
    
      Henry Melville, for app’lt; J. Albert Englehart, for resp’ts.
    
      
       Reversing 44 St. Rep., 838.
    
   Andrews, J.

The sole question on this appeal is whether an order made on the application of the defendants after the commencemeut of the action, to punish the plaintiff for contempt, for interfering to prevent the execution of a commission to take testimony, issued upon the application of the defendants, by which order plaintiff was adjudged guilty of the contempt charged, and which directed as a punishment that the plaintiff’s complaint should be dismissed, and the temporary injunction granted at the commencement of the action should be dissolved, followed by an actual dismissal of the complaint and a dissolution of the injunction in pursuance of the order, constituted a breach of the undertaking of the. sureties given on the issuing of the preliminary injunction to pay the defendants in the action such damages, not exceeding the sum mentioned in the undertaking, “as they may sustain by reason of the injunction, if the court finally decides that the plaintiff was not entitled thereto.”

The object of the action was to procure a judgment restraining the defendants from the infringement of a trade-mark. The right to a temporary injunction depended upon the same facts as did the final relief sought in the action. The interference of the plaintiff, which constituted the contempt, was a protest made on its behalf addressed to the American consul at Cologne against his acting as commissioner under the commission issued to him, •on the ground that by the regulations of the German government a commission to take testimony in that jurisdiction, issued from our courts, could not be legally executed by a foreign consul, and that the oath taken by witnesses and the evidence given under the commission to such consul would be extra judicial.

The law seems to be as claimed by the plaintiff, but the court properly held that this did not justify the plaintiff in interfering to prevent the execution of the commission. In settling the order in the contempt proceedings, the judge who settled the order was asked by the defendants’ counsel to insert in the reference to the injunction a statement “ that it is finally decided that the plaintiff is not entitled thereto.” The judge declined to do so, saying: “ No decision had been, or could be, made on the merits.”

We are of the opinion that the dismissal of the complaint and the dissolution of the injunction, under the circumstances stated, did not, either in fact or in law, constitute an adjudication that the plaintiff was not entitled to the preliminary injunction in the action. That question was not before the court, and was not and could not have been decided in the contempt proceedings. The undertaking related to the right of the plaintiff to a temporary injunction at the commencement of the action, and the obligation assumed by the sureties was to pay damages in case the court “ finally decides that the plaintiff was not entitled thereto.”

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 ex parte and without the consent of the defendants enters an order vacating the injunction and discontinuing the action, this is equivalent to the adjudication 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. It would seem upon the same principle that if the case was dismissed upon the application of the defendants for want of prosecution, the inference should be indulged that no right to an injunction existed when it was issued, and the dismissal should be treated as an adjudication against the right.

But where, as in the present case, the defendants secure a dismissal of the action and a dissolution of the injunction upon, some matter arising subsequent to the commencement of the action and having no relation to the merits either directly or by inference, it would, we think, be contrary to the natural or reasonable interpretation .of the transaction to hold that the dismissal was a determination by the court that the plaintiff at the time the-temporary injunction was issued “was not entitled thereto," and especially would it be contrary to principle to so adjudge against the sureties in the undertaking. Palmer v. Foley, 71 N. Y., 106; Johnson v. Elwood, 82 id., 363.

We think the order of the special and general terms should be; reversed and the motion denied.

All concur, except Earl, Ch. J., not voting.  