
    Herminigil Prefontaine, Resp’t; v. Francis Richards, et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1888.)
    
    Undertaking on injunction—Condition of—Construction of condition.
    Ail injunction was issued in an action to restrain the salo of mortgaged premises. By the condition of the undertaking given on procuring the injunction, it was provided that the obligor, should pay such certain damages as the holder of the mortgage might sustain by reasoh of the injunction, if the court should finally decide that the plaintiff was not entitled thereto. Upon the trial of the action it was stipulated by counsel that a certain sum less than the face of the mortgage was due thereon, and judgment was directed for that sum, and also that the injunction be dissolved and vacated. Held, that this judgment was not equivalent to a decision that the plaintiff was not originally entitled to the injunction.
    Robinson, Foster & Kelly, for resp’t; James Lansing, Merrit & Ryan, for app’lts.
   Landon, P. J.

The condition of the undertaking is that Richards shall pay Prefontaine “ such damages not exceeding the sum of §250, as Prefontaine may sustain by reason of such injunction, if the court finally decides that the said plaintiff was not entitled thereto.”

No such decision has been made. The action in which, the injunction was issued, was to restrain Prefontaine from. selling the property mortgaged by Richards to him to secure the payment of $1,000. Upon the trial of that action, upon the oral stipulation of counsel that $571 was due upon that mortgage, judgment for that sum was directed ; also that the injunction be, and the same is, “absolutely dissolved and vacated ” as in Johnson v. Elwood (82 N. Y., 362); Palmer v. Foley (71 id., 106); Benedict v. Benedict (15 Hun, 306), no determination has been made as to the original right of Richards to the injunction, A proper case may have existed entitling Richards to an injunction “until the further order of the court,” as this was, in order to prevent the sale of property under a mortgage for $1,000 upon which only $571 was due. Who knows whether he was entitled to it or not \ The court upon the trial of the case did not decide the question, and it remains open.

It is said that the judgment of the court vacating the injunction is equivalent to a decision that the plaintiff was not originally entitled to it. But we do not know that if he had not procured the injunction, his property would have been sold upon a larger claim than was just, and that by means of the injunction, he has been protected from threatened injury. We do not know but that the injunction was proper until the true sum due was ascertained, and that then and then only it was proper to vacate it. The defendants are liable according to the terms of their undertaking, and not otherwise- I advise a reversal of the judgment.

Parker, J., concurs.

Fish, J.

I was quite inclined upon first examination of this case, and had, in fact, concluded that the result as found before the referee followed by judgment, etc., was equivalent to a judgment of the court that Richards was not entitled to the injunction order at the time it was granted. Upon reflection, however, and upon a more careful reading of cases Johnson v. Elwood (82 N. Y., 362); Benedict v. Benedict (15 Hun, 306), I am persuaded that the recovery herein cannot be upheld and concur with opinion of brother Landon in favor of reversal.  