
    (37 Misc. Rep. 691.)
    TAYLOR WORSTED CO. v. BEOLCHI et al.
    (Supreme Court, Special Term, New York County.
    April, 1902.)
    Injunction—Dissolution—Liability on Bond.
    Plaintiff, which was solvent, was indebted to a certain firm, but before the debt was payable the firm was sued in another state, and the debt attached. One B. intervened, claiming a lien superior to the attachment lien, and began an action in New York against plaintiff. Thereupon plaintiff brought injunction restraining further prosecution of the suit In New York until a determination of the action in the other state.. The latter action was decided in favor of B., to whom plaintiff subsequently paid a judgment submitted to by It in the suit in the state. Held,, that B. could recover no damages on the injunction bond.
    Action by the Taylor Worsted Company against Vincent M. Beolchi. and others. Motion by defendant Beolchi for a reference to fix the-damages claimed to be due on an injunction bond given in the action..
    Motion denied.
    Gould & Wilkie, for plaintiff.
    Paul C. Schnitzler, for defendant.
   SCOTT, J.

In September, 1900, the plaintiff became indebted to-the firm of De Villeneuve & Co. for merchandise purchased. Before the debt became payable, the defendants De Laurent & Sanders sued De Villeneuve in Pennsylvania, and levied an attachment upon the indebtedness of the plaintiff to him. Thereupon the defendant Beolchi-. intervened in the Pennsylvania action, claiming to be entitled to the amount due from the plaintiff to Villeneuve superior to the claim of' De Laurent & Sanders. The plaintiff was perfectly solvent, and ready to pay as soon as it should be determined to whom payment ought to-be made. Before the Pennsylvania action could be tried, Beolchi began an action upon the same claim against the plaintiff in the city court of. the city of New York, and obtained an order placing the action upon the short-cause calendar for trial. The plaintiff, without any fault of. its own, was thus placed in a position where it might have a judgment against it here in favor of Beolchi and a'judgment in Pennsylvania in-favor of De Laurent & Sanders. Thereupon the present action was commenced, wherein the plaintiff obtained an injunction restraining the-further prosecution of the action in the city court “pending the final determination” of the action in Pennsylvania, and restraining all the-defendants from commencing or prosecuting any other action upon the-same claim except the Pennsylvania action. Upon appeal this injunction was affirmed by the appellate division. A demurrer by Beolchi to-the complaint was overruled, with leave to answer over. The action in Pennsylvania was decided in favor of Beolchi, and the plaintiff in due course moved to discontinue this action, which motion, although, opposed by Beolchi, was granted, without costs, and no appeal was-taken therefrom. The plaintiff also submitted to and paid a judgment in favor of Beolchi in the city court action. Beolchi now moves for a reference or writ of inquiry to fix the damages which he claims to - be due him upon the injunction bond given in this action. It would be most inequitable if the plaintiff were to be obliged to pay damages, for it was not only justified, but practically compelled, for its own protection to obtain the injunction. It was absolutely indifferent as betweenBeolchi and De Laurent, and was perfectly ready and willing to pay whoever might prove to be entitled to the money. Beolchi, by his intervention in the Pennsylvania action, had chosen a forum for the-determination of the question, and his action in the city court was wholly unnecessary. In my opinion, the plaintiff is not liable on the injunction bond. It is true that in most cases the voluntary discontinuance by the plaintiff of an action for an injunction is equivalent to-an adjudication that he was not entitled to his preliminary injunction. This rule is not, however, of universal application. The question in each case is whether or not the plaintiff was entitled to the preliminary .injunction when it was granted. And where the action is discontinued or the complaint dismissed for some reason arising after the issuance of the injunction, such discontinuance or dismissal does not entitle the defendant to damages. Apollinaris Co. v. Venable, 136 N. Y. 46, 32 N. E. 555; Johnson v. Elwood, 82 N. Y. 362; Benedict v. Benedict, 15 Hun, 305; Id., 76 N. Y. 600. In the present case the plaintiff was ■entitled to the injunction when it was granted, because the action in •Pennsylvania was then pending. The reason for the discontinuance was that something had happened after the injunction was issued, to wit, the determination of the Pennsylvania action, which removed the reason and the necessity for the injunction. The motion is therefore denied, with $10 costs.

Motion denied, with $10 costs.  