
    Alfred H. Reeves, Respondent, v. Timothy D. Sullivan and Others, Appellants.
    Second Department,
    March 8, 1907.
    Injunction — damage — when counsel fees proper on reference to assess damage.
    
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    When a motion for an injunction pendente lite has been denied-and a preliminary" injunction vacated and set aside, the. defendant, on a reference to ascertain, the damage sustained by reason of the injunction, is entitled to counsel fees incurred on the return to the order to show cause, if the injunction might have remained in force had the defendant failed to appear.
    Appeal by the defendants, Timothy D. Sullivan and others, from an order of the Supreme Court,, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of December, 1906, denying the'defendants’ motion for a reference to ■ ascertain the damages alleged to have been sustained by reason of an injunction herein.
    
      Louis J. Vorhaus and Charles Goldzier, for the appellants.
    
      Isidor Niner, for the respondent.
   Rich, J.:

The order for the preliminary injunction provided, among other things, “ that the defendants and each of them be enjoined and restrained from • permitting any show other than 'the ‘ A1 Reeves Company ’ to play or appear at the Dewey Theatre during the week beginning December 17, 1906, and that the defendants and each of them be enjoined from preventing the ‘ A1 Reeves Company ’ from appearing and playing at the Dewey Theatre during the week beginning December 17, 1906, and from failing to"furnish the Dewey Theatre to plaintiff for the .appearance of the 1A1 Reeves Company’ during the week beginning- December 17, 1906, well-lighted, warmed and cleaned, with the scenery and equipments ‘contained therein,' necessary grips under direction of house carpenter, stage hands, property man and his assistant, gas man, janitors, electric current in house, ushers, ticket-sellers, dooikeepers, regular - orchestra, coupons’and regular tickets, house premiums,, all licenses,. bill-boards, bill posting and distributing, and regular newspaper advertising, and from turning over and paying to the plaintiff fifty per cent, of the gross receipts therefor during the said week of December 17, 1906, after deducting $150 for newspaper and extra advertising; and that the defendants and each of them be further enjoined and restrained from playing or permitting to be played at the Dewey Theatre during the seasons of 1906-1907, 1907-8, and 1908-9, or during such seasons permitting any burlesque play or show or any show of any character other than those designated by the schedule or wheel referred to in the complaint herein.”

The undertaking given upon the application for the injunction, after reciting the provisions of the order quoted above, provided: “ That the plaintiff will pay to the defendant so enjoined, such damages, not exceeding the before-mentioned sum, as they may sustain by reason of the injunction, if the court finally decides that- the. plaintiff is not entitled thereto; such damages to be ascertained and determined "by the court, or by a referee appointed by the court, or by a writ of inquiry or otherwise as the court shall direct.”

The only question presented for our determination is whether counsel fees incurred on the motion upon the return of the show cause order was a proper element of damages. The motion for the injunction pendente lite was denied and the preliminary injunction annulled, revoked and set aside.

In the case of Sargent v. St. Mary’s Orphan Boys’ Asylum (112 App. Div. 674), cited by the learned counsel-for the respondent, the preliminary order was limited to expire on the hearing and determination of the motion to continue and, as Mr. Justice Rash pointed out, counsel was employed to oppose the motion for an in junction pendente lite. Ro order to vacate the temporary restraining order was required and none was made. The expenses incurred for such services are not recoverable. After the decision of the motion to continue the injunction the restraining order was no longer of any force or effect in the Sargent case.

In the case at bar, however, the preliminary injunction enjoined and restrained defendants during the theatrical seasons of 1906-1907, 1907-1908 and 1908-1909. We think it was reasonable that defendants should appear by counsel upon the motion, and if so advised to urge that the order be vacated, and that the legitimate items of expense incurred to this end are legitimate and' propter elements of damages. (Perlman v. Bernstein, 93 App. Div. 335.) The injunction might have remained in force had defendants failed to appear, and the order must be reversed, with ten dollars costs and disbursements, and motion granted.,

Hirschberg, P. J., Jenks, Hooker ánd Gaynor, JJ., concurred.

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