
    PATTERSON against BLOOMER.
    
      Supreme Court, First Department, First District; General Term,
    
    
      September, 1870.
    Liability of Plaintiff in Injunction Suit.—Enforcing Undertaking.—Contempt.
    The plaintiff in an injunction suit is not liable upon the usual undertaking of sureties to pay any damages which may be sustained by the defendant by reason of the injunction, unless he signs the undertaking as obligor.
    The right to a reference to ascertain the damages so sustained exists only as against those who sign the undertaking.
    The remedy , against a plaintiff who procures an injuction in a case in which he is not entitled to it, is only by an action at law for damages, unless he is a party to the undertaking.
    Appeal from an order.
    This action was brought by Charles G-. Patterson against Elisha Bloomer, to enforce the specific performance of a contract for the purchase of a stone quarry. The defendant claimed that he had been induced to execute the contract by fraud.
    In September, 1867, the plaintiff obtained an injunction in the action, restraining the defendant from interfering with the quarry, and at the same time he gave an undertaking, signed by sureties but not by himself, conditioned in the usual form, “that said plaintiff would pay to the defendant so enjoined such damages, >. not exceeding the sum of two thousand five hundred dollars, as he may sustain by reason of the said injunction, if this court shall finally decide that the said plaintiff was not entitled thereto, such damages to be ascertained by a reference or otherwise as the court shall direct.”
    The action having been subsequently discontinued at the plaintiff’s instance, without prejudice to the defendant’s rights against him on the undertaking, the defendant moved for and obtained an order directing a reference to ascertain the defendant’s damages by reason of the injunction. The referee, after a hearing, reported the damages at the sum of two thousand and •sixty dollars, and directed that the plaintiff and his surety should pay the same to the defendant. The report was confirmed by the court on motion, and upon the order entered thereupon the defendant docketed judgment, issued an execution, and thereafter took supplementary proceedings to enforce satisfaction.
    These proceedings the plaintiff moved to have set aside, and the motion was granted on the grounds stated in our report of the case (6 Abb. Pr. N. S., 446).
    The defendant, thereupon, having made a formal demand for the payment of the amount specified in the order confirming the report, moved for and obtained an order that the plaintiff pay to the defendant the sum awarded in the order within thirty days, and that, in default of making such payment, an attachment or precept issue against him as for a contempt.
    The decision upon that motion is reported in 7 Abb. Pr. N. S., 396; and from that order the present appeal was taken.
    
      David Dudley Field, for the appellant.
    I. There is no judgment in the action. It was discontinued without prejudice.
    II. The only orders in the action are one deciding that defendant is entitled to recover, &c.; and the other directing that plaintiff pay or that an attachment issue.
    III. .The first order was invalid. The court had no right to order a reference of this sort. The plaintiff did not sign the injunction undertaking in this case, and was not, therefore, bound by it. By the former practice the plaintiff was not liable for the damage caused by the issue of the injunction, unless a bond was required signed by him stipulating to pay it. Without any bond or undertaking the defendant would have no remedy. This is distinctly shown by the case of Cayuga Bridge Company v. Roger, 2 Paige, 122; Sullivan v. Judah, 4 Id., 446. And the same practice is distinctly recognized in the case of Episcopal Church v. Varian, 28 Barb., 694.
    IV. Even if the plaintiff is bound by the undertaking, the liability which ip created is one upon which he is entitled to a trial by jury. At the most, the effect of the reference is merely to liquidate the amount of the liability, so that, in an action brought against him to recover the damages, the issue as to the amount could not be raised by him.
    
      Geo. W. Wingate, for the respondent.
    The I.The plaintiff cannot go behind the order of June 28, 1868, which adjudicates the defendant’s damages, and his right to recover them from him. (1.) Having been heard upon the reference, and failed to except to the referee’s report, it was conclusive upon him as to the amount of damages, and his liabilities therefor (Supreme Ct. Rules, No. 32). (2.) Having been heard on the motion for this order, as well as on its settlement, and a copy having been served upon his attorneys, and personal notice thereof given to him in 1868, and no appeal, the whole matter is res adjudícala, and will not now be inquired into. (3.) The judgment was vacated upon the express ground that the proper remedy was by this proceeding (Patterson v. Bloomer, 6 Abb. Pr. N. S., 446).
    II. There is no irregularity either in the order of June 23, 1868, or the proceedings upon which it was founded. The discontinuance was expressly without prejudice to defendant’s right to proceed by way of a reference. It cannot be contended that the reference was improperly ordered, because the question of a final adjudication was reserved until the coming in of the referee’s report (Pacific Mail Steamship Co. v. Leuling, 7 Abb. Pr. N. S., 37, 40; Taaks v. Schmidt, 19 How. Pr., 414; Crockett v. Smith, 14 Abb. Pr., 62; Mutual Safety Ins. Co. v. Roberts, 4 Sandf. Ch., 592; Coates v. Coates, 1 Duer, 664; Carpenter v. Wright, 4 Bosw., 655; Cumberland Coal & Iron Co. v. Hoffman Steam Co., 39 Barb., 16; Methodist Ch. v. Barker, 18 N. Y., 463). The fact of the plaintiff’s not having personally signed the undertaking, so far from excusing him* from liability, is a conclusive reason why he should be held upon this application. (1.) It was given ‘ ‘ on the part of the plaintiff,” as a condition precedent to the granting of the injunction, and is to the effect that “the plaintiff will pay” the damages caused by it, and prescribes that they shall be computed by a reference in that action (Code, § 222). (2.) It is self-evident that a party obtaining an ex-parte injunction to which he is not legally entitled, thereby makes himself personally liable for all damages which may be caused by the process which he puts in motion, irrespective of any undertaking. If, therefore, he gives an undertaking with surety, providing that such damages shall be computed in a particular manner, he is estopped from saying that he- is not bound by the result of such computation (See cases cited, 2 Smith L. Cas., 823, 824). (3.) Besides, the Code authorizes a reference to compute the damages caused by an injunction, irrespective of any stipulation to that-effect contained in the undertaking (Code, § 222: Higgins v. Allen, 6 How. Pr., 30). Prior to the Code, the rule-was different (Garcie v. Sheldon, 3 Barb., 232). (4.) It will be recollected a plaintiff is never required to sign undertakings of this description (Askins v. Hearns, 3 Abb. Pr., 188; Leffingwell v. Chave, 10 Id., 475, 476; Republic of Mexico v. Arrangoiz, 5 Duer, 640). The application being wholly ex-parte, defendant has no means of ascertaining the responsibility of the sureties. Therefore, the party is responsible in the same manner and to the same extent without as with the express undertaking (Askins v. Hearns, 3 Abb. Pr., 188, and cases supra). (5.) Therefore the fact that plaintiff did not sign the undertaking is a conclusive reason why he should be held in this proceeding. As against the sureties, a suit on the undertaking may perhaps be required (Wilde v. Joel, 15 How. Pr., 321, and cases supra, under subd. b.). As against the plaintiff, the rule is different; for although he is concluded in like manner, yet, not having signed the undertaking, he cannot be sued on it. The amount of his liability having been settled, it must be enforced in this case, or not at all; and the only way it can'be enforced is by order. The direction in the order of June 23, 1868, for the plaintiff to pay the damages thereby adjudicated, was proper (Willett v. Scovil, 4 Abb. Pr., 405). (1.) The amount of damages having been ascertained by a reference, and the plaintiff not only having admitted his liability by discontinuing, but the court having actually decided the injunction to have been wrongful, as between the' plaintiff and the defendant, this order was a conclusive adjudication upon the fact of the plaintiff’s liability and the amount (See cases supra, under subd. b.). (2.) However necessary a suit might be as against the sureties who were “entitled to their day in court,” the plaintiff, not having signed the undertaking, could not be sued on it. In fact, he having had a full hearing, it would be a mere multiplication of litigation to compel the defendant to take any further proceedings as against him. (3.) The provisions of the Code in regard to the computation of damages caused by a wrongful injunction are much more strict than in cases of any other provisional remedy or undertaking of any kind (Code, §§ 182, 209, 222, 230, 334). And clearly contemplate that they should be fixed and paid in a summary proceeding in the original action (Willett v. Scovil, 4 Abb. Pr., 405; Methodist Ch. v. Barker, 18 N. Y., 463, 466). (4.) The order in question was a decree for the payment of money, and should be enforced as such (Patterson v. Bloomer, 6 Abb. Pr. N. S., 446; Brush v. Lee, Id., 50). When the proceeding is to enforce a civil remedy, and the party in default has already had the opportunity of contesting his liability to perform what the proceeding seeks to compel him to perform, such proceeding is in effect but an execution of the judgment or order against him (Pitt v. Davison, 3 Abb. Pr. N. S., 403; Van Wezel v. Van Wezel, 3 Paige, 44). Plaintiff’s failure to file exceptions to the referee’s report, or to appeal from the-order of June 23, 1868, confirming it and directing payment of the damages reported, prevents him now from seeking to excuse his disobedience by impeaching the regularity of that order (People v. Sturtevant, 9 N. Y. [5 Seld.], 266, 267). The principle is of peculiar force here, as the plaintiff knew perfectly well from previous experience that the order was conclusive unless appealed from (Hilton v. Patterson, 18 Abb. Pr., 245; see, also, Smith v. Reno, 6 How. Pr., 127; Arctic Fire Ins. Co. v. Hicks, 7 Abb. Pr., 204; People v. Spalding, 2 Paige, 326; Higbie v. Edgarton, 3 Id., 253).
    III. The court has jurisdiction to enforce this order by proceedings for contempt, (a.) “Every court has power to punish by fine or imprisonment, or either, any neglect or violation of duty, or any misconduct by which the rights and remedies of a party . . . may be defeated, impaired, impeded, or prejudiced in the following cases.” . . . . “§ 3. Parties to suits, attorneys, and all other persons for the non-payment of any sum of money ordered by said court to be paid in cases where by law execution cannot be awarded for the collection of such sum, or for any other disobedience to any lawful order, decree, or process of such court” (3 Rev. Stat., 849, et seq.; 1 Crary Sp. Pro., 172, et seq.). Execution only issues upon a judgment (Code, § 283 ; Swift v. De Witt, 3 How. Pr., 280; S. C., 1 Code R., 25; 5 N. Y. Leg. Obs., 314; Townshend v. Wesson, 4 Duer, 342). In this- case a judgment was actually entered and an execution issued, which was set aside on the plaintiff’s application as irregular (Patterson v. Bloomer, 6 Abb. Pr. N. S., 446). The precept mentioned in the statute applies only to interlocutory costs (Lucas v. Johnson, 6 How. Pr., 121). (b.) This order, being for the payment of money, is directly within the power of the court, like an order for the payment of alimony, or in supplementary proceedings, &c., and should be enforced as such (Brush v. Lee, 6 Abb. Pr. N. S., 50; Ward v. Ward, Id., 79; People ex rel. Pease v. King, 9 How. Pr., 97; Myers v. Trimble, 1 Abb. Pr., 220, 399; S. C., 3 E. D. Smith, 607, 613; Seaman v. Duryea, 11 N. Y. [1 Kern.], 324; Kearney’s Case, 13 Abb. Pr., 459; Matter of Bleakly, 5 Paige, 311; Parker v. Browning, 8 Id., 388); (c.) The plaintiff was not even entitled to notice of motion (3 Rev. Stat., 849). These provisions are still in force (Brush v. Lee, 6 Abb. Pr. N. S., 50; Lucas v. Johnson, 6 How. Pr., 121; Thomas v. Clark, 5 Id., 375; Hulsaver v. Wiles, 11 Id., 446; Mitchell v. Westervelt, 6 Id., 267; Weitzel v. Schultz, 3 Abb. Pr., 191; S. C., 13 How. Pr., 191; 1 Crary Sp. Pro., 172, et seq.). And the order to commit for the non-payment of money issues directly (People ex rel. Pease v. King, 9 How. Pr., 97). This being different from all other cases of contempt (Van Wezel v. Van Wezel, 3 Paige, 43; Albany City Bank v. Schermerhorn, 9 Id., 374).
   By the Court.—Cardozo, J. (orally, after consultation).

It appears in this case that the appellant, whom the defendant seeks, to charge upon the undertaking given upon the issue of the injunction, was not a party to the undertaking. He did not sign it, and we do not see how it is possible to sustain the order that a judgment be entered against him for the amount awarded upon the reference. If the plaintiff in such a case does not sign the undertaking, there is nothing on which you can proceed against him in this method.

It is said that the Code does not expressly require the plaintiff to sign this class of undertakings, and that the sureties may not be, as it is suggested they were not in this case, sufficiently responsible to afford the defendant indemnity; but the remedy for an insufficient security is to apply to the court to compel the plaintiff to furnish new security, which is a very common practice.

If the plaintiff is not made a party to the undertaking, the remedy of the defendant, in case the injunction proves to have been one to which he was not entitled, is an action on the case for-damages. The right which the Code gives to the summary proceeding to ascertain the amount of damages by a reference, is given only as against the parties to the undertaking.

The order appealed from must be reversed. 
      
      Present—Gr. Q-. Barnard and Cardozo, JJ. In this case, Ingrasham, P. J., having made the order appealed from, did not sit.
     