
    Josiah Carpenter, Plaintiff and Appellant v. Wm. S. Wright and Cyrus Curtis, Special Receiver, Respondents.
    1. Where a plaintiff, on commencing a suit and obtaining an injunction, gives an undertaking to pay to the defendants such damages as they may sustain by reason of the injunction, if the Court shall finally decide that the plaintiff was not entitled thereto, the damages to be ascertained by a reference or otherwise, as the Court shall direct, and where, on motion of the defendants, the Court by order dissolves such injunction, and thereupon the plaintiff discontinues the action, and pays the costs, the Court may thereupon order a reference to ascertain the damages sustained by the defendants.
    2. Such an order having been made, should not be reversed unless it.be perfectly clear that no action will lie on the undertaking.
    3. It should not be reversed on the idea that on such a state of facts it is clear the Court has not finally decided that the plaintiff was not entitled to the injunction, and therefore no action will lie on the undertaking.
    4. A dissolution of the injunction by order of the Court, upon a hearing of the parties, though on motion, followed by a discontinuance of the action by the plaintiff, makes the order of dissolution a final decision in such sense, that it cannot be reviewed on appeal, nor reinvestigated in that action.
    (Before Bosworth, Ch. J., and Hoffman, Woodruff, Moncrief and Robertson, J. J.)
    Heard, January 28;
    decided, February 11, 1860.
    This is an appeal by the plaintiff from an order made by Mr. Justice Pierrepont, on the 14th of November, 1859. On commencing this action, on the 29th of September, 1859, the plaintiff obtained an injunction restraining the defendants from doing certain acts therein specified, which injunction was served on the defendants. To obtain it, he gave such an undertaking as section 222 of the Code requires. The undertaking declared that the damages secured by it “ may be ascertained by a reference, or otherwise, as the Court shall direct.”
    The injunction, on motion of the defendants, andón a hearing of all the parties, was vacated by order of the Court on the 7th of October, 1859. On the 8th, an order was entered, at the plaintiff’s instance, discontinuing the action pn payment of costs, which were paid.
    
      Subsequently, and' on the 14th of November, 1859, an order was entered on motion of the defendants, and upon notice to the plaintiffs, appointing a referee “ to ascertain the damages sustained by the defendants in said action, or either of them, on account or by reason of said injunction, or the issuing thereof,” and to report in the premises with all convenient speed. From that order the plaintiff appealed to the General Term.-
    
      S. Sanxay, for appellant,
    Contended that no action would lie on the undertaking; that the Court had not finally decided that the plaintiff was not entitled to the injunction; that it had not tried the cause upon the merits; and could not hereafter pass upon it, as the cause was out of Court, the action having been discontinued; that there was no authority to make the order appealed from, and it should be reversed. He cited and commented on 7 Abb. Pr. R., 308; 18 N. Y. R., 463; and 14 id., 60.
    
      A. Roe, for respondents,
    Insisted that the order of reference was in accordance with established practice, and cited 11 How. Pr. R., 269.
   By the Court—Bosworth, Ch. J.

The- order appealed from should not be vacated, ^unless it is perfectly clear that no action will lie upon the undertaking. That provides for ascertaining the damages by a reference. The question of liability can be better and more fitly determined in an action upon the undertaking. The reference will settle the measure of liability, if the parties to the undertaking shall be held liable, but not the fact of liability. It has been determined in this action that the plaintiff was not entitled to the injunction. By the plaintiff’s acquiescing in that -decision, and immediately abandoning his action, that decision became a final one in the action, in such sense, that it cannot be reviewed on appeal, nor be reinvestigated in any other manner in that action. There is, therefore, much reason for considering that decision a final one within the meaning of the undertaking, and of section 222 of the Code.

In Coates v. Coates, (1 Duer, 664,) the practice was sanctioned which has been pursued in this case. The case in 7 Abb., Pr. R., 308, contains no intimation in conflict with it. There, no decision had been made upon the question of the plaintiff’s right to the injunction. (See 11 How. Pr. R., 269; 12 id., 170.)

In 18 New York Reports, 463, the order of reference was made after a judgment entered dismissing the complaint. I do not think the defendants (if entitled to damages) have lost the right to an assessment by a referee, solely because the action has been discontinued. It is not thereby terminated more absolutely than by a dismissal of the complaint. The order should be affirmed.

Affirmed accordingly.  