
    George Freifeld and Ambrose S. Murray, as Trustees under the Last Will and Testament of Robert F. Bixby, Deceased, and George Freifeld, as Trustee under the Last Will and Testament of John M. Bixby, Deceased, Appellants, v. Henry B. Sire, Respondent.
    
      Injunction undertaking—damages a/re only recoverable where it is adjudged that the party was not entitled thereto — when a discontinuance of the action'and a vacation of the injunction is not such am adjudication.
    
    The plaintiffs in an action obtained an injunction pendente lite by giving an undertaking providing, “Plaintiffs will pay to the defendants so enjoined such’ damages,, not exceeding the before-mentioned sum, as he may sustain by reason of the.injunction if the court finally decides that the plaintiffs were not entitled thereto.”
    The action was discontinued and the injunction vacated with the consent of the parties, under a stipulation reciting, “It. being understood that there is no adjudication on the question of the plaintiffs’ right to the injunction, nor of any of the questions involved herein as to what is personal property or what formed part of the realty or the ownership thereto, and that this discontinuance is without prejudice to the rights of either party and without prejudice to defendant’s right to bring an action against the plaintiffs and on the undertaking given herein to continue the injunction to. establish his rights to any damages claimed by him by reason of the injunction granted and continued herein.”
    After the entry of the order upon such stipulation the defendant made a motion for the appointment of a referee to assess the damages which he claimed to have sustained by reason of the granting of the injunction.
    
      Held, that the discontinuance of the action and the vacation of the injunction pursuant to the stipulation did not constitute an adjudication that the plaintiffs were not entitled to the injunction, and that, in the absence of such an adjudication, the defendant acquired no right to enforce the undertaking.
    Appeal by the plaintiffs, George Freifeld and another, as trustees under the last will and testament of Robert F. Bixby, deceased, and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the-county of New York on the 30th day of March, 1904, granting the defendant’s motion for the appointment of a referee to assess the damages sustained by the defendant by reason of the granting of an injunction to the plaintiffs herein.
    
      Charles Gibson Bennett, for the appellants.
    
      Josiah Canter, for the respondent.
   Hatch, J.:

The action in which this proceeding is instituted was commenced April 14, 1902, and a preliminary injunction was issued restraining the defendant from removing certain chattels and properties from the Casino Theatre. The preliminary injunction was continued until the trial of the action upon plaintiffs giving an undertaking in the sum of $25,000 with the American Surety Company as surety. The trial was commenced, and upon the second day thereof was discontinued and the injunction vacated by the consent of parties upon the following stipulation, signed by their respective attorneys : “ It is hereby consented that this action be discontinued without costs to either party as against the other and an order to that effect be entered without further notice, and that the injunction granted herein is hereby vacated and set aside. It being understood that there is no adjudication on the question of the plaintiffs’right to the injunction, nor of any of the questions involved herein as to what is personal property or what formed part of the realty or the ownership thereto, and that this discontinuance is without prejudice to the rights of either party and without prejudice to defendant’s right to bring an action against the plaintiffs and on the undertaking given herein to continue the injunction to establish his rights to any damages claimed by him by reason of the injunction granted and continued herein.” An order was entered on this stipulation containing four pro visions, first, that the action is discontinued without costs to either party as against the other; second, that the injunction granted is vacated and set aside; third, that no adjudication has been had of the plaintiffs’ right to the injunction obtained in the action or as to what is personal property or what formed part of the realty or the ownership thereto, and, fourth, that the discontinuance is without prejudice to the rights of either party, “ and without prejudice to the defendant’s right to bring an action against the plaintiffs on the undertaking given herein to continue the injunction and to establish his rights to any damages claimed by him by reason of the in junction granted and continued herein.” After the entry of this order the defendant made a motion for the appointment of a referee to assess the damages which he claims' to have sustained by reason of the granting of the injunction. The clause of the undertaking upon which he claims his right to an award of damages is as follows: Plaintiffs will1 pay to the defendant so enjoined such damages, not exceeding the before-mentioned sum, as he may sustain by reason of the injunction if the court finally decides that the plaintiffs were 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.” Plaintiffs contend that' defendant is not entitled to the order which has beén granted, for the reason that the court has not decided that the plaintiffs were not entitled to the injunction. There was no adjudication on the 'question of the plaintiffs’ right to the injunction. This was the express language of the stipulation, and was embodied in the 3d clause of the order entered thereon. The defendant, before, he can proceed against the sureties in the undertaking, is required to bring himself literally within its terms. As there was no adjudication that plaintiffs were not entitled thereto, the defendant has not' shown a case which entitled him to damages by the terms of the undertaking. This rule is well established. (Apollinaris Co. v. Venable, 136 N. Y. 46; Kelley v. McMahon, 32 Hun, 347.) While it is not in all cases necessary that a formal adjudication declaring that the plaintiff is not entitled to the undertaking should be had, yet before an enforcement will be permitted it must appear that the proceedings had are the equivalent of such a result. (Pacific Mail S. Co. v. Toel, 85 N. Y. 646; Lawton v. Green, 64 id. 326; Vanderbilt v. Schreyer, 28 Hun, 61.) What has been held to constitute an equivalent for the adjudication is where the plaintiff ex parte, and without the •consent of the defendant, enters an order vacating the injunction and discontinuing the action. So, if the case was dismissed upon the application of the defendant for want of prosecution, the dismissal may be treated as an adjudication of the right. (Apollinaris Co. v. Venable, supra.) In Palmer v. Foley (71 N. Y. 106) there was a voluntary stipulation for the discontinuance of the action by consent of all the parties, and an order was entered carrying that agreement into effect, and the action thus came to an end. It was claimed that such action constituted an equivalent to an adjudication that the plaintiff was not entitled to the injunction. Judge Folger, in disposing of such question, says: “It is claimed that this is equivalent to the court finally deciding that the plaintiff was not entitled to the injunction order. Cases are cited which almost hold to that effect. I will not name them. In most of them there was some action of the court, upon the validity or merit of the injunction order, adverse to the plaintiff’s right to have had it allowed. The plaintiff after such action discontinued of his own motion, and presumably in consequence thereof. In none of them was the discontinuance a matter of agreement between the parties to the action.” And it was held for this reason, among others, that there was no breach of the undertaking, and, consequently, no right to proceed thereunder. That case upon the question here involved is conclusive of the defendant’s right. In the present case the plaintiffs were most careful to show that no adjudication had been had, and none in fact was had of the rights of the plaintiff to the injunction in any form. The right reserved in the stipulation to the defendant was not a right to enforce the undertaking. It provided that any rights which he had under the circumstances should not be prejudiced. The order did not enlarge the force and effect of the .stipulation. Had it attempted to do so, it would have been entered without authority. As there had been no adjudication, the defendant has acquired no rights to enforce the undertaking,, because there was no breach of its terms. Consequently, he was not and could not be prejudiced^ in the exercise of any remedy to enforce any right which he possessed. The right he seeks to enforce never existed, and the only effect of the stipulation and order was to save such rights as the defendant possessed at the time of the discontinuance; but nothing therein operated to extend to the defendant any right of action or to prosecute any proceeding in the enforcement of any right beyond such as he possessed at the time of the discontinuance, and as he then possessed no right to enforce this undertaking he made no case entitling him to an order of reference.

In Vanderbilt v. Schreyer (supra),. relied upon by the defendant, it appeared that upon an application by the defendant prior to the trial of the action the court dissolved the injunction, and, as such action was subsequently discontinued, it was held that the order dissolving the injunction became operative as a final decision. Here nothing of the kind occurred; in consequence of which the cáse is only authority for the proposition that an exception exists where proceedings have been had which are the equivalent of an adjudication that the plaintiff is not entitled to the injunction. That is not this case.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  