
    PATTERSON against BLOOMER.
    
      Supreme Court, First District ; Special Term,
    
    
      June, 1868.
    Injunction Bond. — Mode of Enfoecing. — RefeeENCE. —J UDGMENT.
    The liability of sureties upon the usual undertaking, given on the issue of an injunction, to pay any damages sustained by the defendant thereby, if it be determined that the plaintiff has no right to an injunction, cannot be enforced by reference, and a judgment on the referee’s report, without action, or at least without notice to the sureties of the hearing before the referee.
    Nor can the liability of the plaintiff to pay such damages be enforced by entering judgment against him for the amount found due, where he did not sign the undertaking.
    The proper practice in such case, would be either to bring an action or to obtain an order of court directing payment, and to enforce it in the same manner, as other similar orders.
    Motion to set aside judgment and proceedings thereon.
    
      The plaintiff commenced this action to enforce the specific performance of an agreement, for the sale of a quarry, and obtained an injunction, giving the usual bond, in which, however, he did not join as an obligor.
    •During the pendency of a motion to vacate an injunction, the plaintiff obtained leave to discontinue on payment of costs, and without prejudice to the defendant’s rights on the undertaking.
    The defendant thereupon moved for a final adjudication, and a reference to compute his damages, and procured a reference, and a report adjudging his damages to be $2,060,—which was confirmed on motion by an order, “ finally adjudging that the plaintiff was not entitled to the injunction at the time of the making thereof, that the damages sustained by the defendant thereby amounted to the sum of $2,060,” and directing that the plaintiff and his sureties should pay the same to the defendant.
    Upon this order the defendant, on December 24,1868, docketed judgment, issued an execution, and, upondts being returned unsatisfied, obtained an order to examine the plaintiff on supplementary proceedings.
    The plaintiff thereupon (in June, 1869), moved to set aside the judgment and the order for the supplementary proceedings.
    
      Dudley Field, for the motion.
    I. The assessment of damages cannot be made until the court has finally decided that the plaintiff is not entitled to the injunction, (Code, § 222 ; Weeks v. Southwick, 12 How., 171 ; Shearman v. New York Central Mills, 11 Id., 271 ; Methodist Church v. Barker, 18 N. Y., 465).
    II. There was no such final decision in this case. (1.) The question of injunction was never - passed upon, the action having been discontinued. (2.) The final decision must be a judgment which is entered, and no jxidgment was ever entered here, except the one which it is sought to set aside (Oases supra).
    
    III. In no case can judgment be entered upon the referee’s report. That only fixes the amount of damages, and liquidates them so he can sue on them (Wilde v. Joel, 15 How. Pr., 327 ; see Bein v. Heath, 12 How. U. S., 177). (2.) The case in 2 Cal., cited on the other side, is overruled here ; and at most only decides that a party signing an undertaking may thereby waive a trial by jury-
    IV. The plaintiff here did not sign the undertaking, and is not bound by its terms. He is, of course, liable for any damages sustained by the defendant by reason of the injunction, but they must be recovered in another way.
    V. The judgment roll is fatally defective. This is reason enough for setting the judgment aside (Townsend v. Wesson, 4 Duer, 342 ; affirmed in court of appeals, and not reported).
    
      Geo. W. Wingate, opposed.
    I. The plaintiff was liable upon the undertaking, whether he signed it or not. It is required to be “ on the part of the plaintiff,” “ that the plaintiff will pay” the damages {Code, § 222). It is therefore absurd to say, that his filing an instrument binding him to certain damages as a condition precedent to obtaining certain relief, imposes no liability upon him. In Atkins v. Hearn (3 Abb. Pr., 188), the court held that a plaintiff was liable in the same manner and to the same extent, without or with the undertaking required by the Code. An absolute undertaking “ that the plaintiff will pay” (whether executed by him or by another person), is an undertaking on his part (Leffingwell v. Chave, 10 Abb. Pr., 476).
    II. The regularity of the reference, the report and order of confirmation, are res adjudicóla, each having been contested at the time, and no appeal taken.
    III. The entry of judgment was proper. (1.) The court had adjudged the plaintiff liable, had ascertained the defendant’s damages, and ordered the plaintiff to pay them, which order, not having been appealed from, is conclusive. There was, therefore, no necessity of any farther litigation. This was in itself an adjudication of an indebtedness, a judgment. It is directly, within the words of the Code, “ a final determination of the rights of the parties in the action” {Code, § 245). The making up of the judgment roll from the papers on file, was the duty of the clerk, not the attorney, and has nothing to do with the judgment {Code, § 281; Renouil v. Harris, 1 Code Rep., 125 ; Earle v. Barnard, 22 How. Pr., 437). (2.) This order was simply a decree at special term, which, when filed, became a judgment, and can be enforced by execution. (3.) The discontinuance by the plaintiff was an acknowledgment that he could not maintain Ms action, and that the injunction was improperly granted, and a reference to ascertain the defendant’s damages will thereupon be ordered (Taaks v. Schmidt, 19 How. Pr., 414; Crockets v. Smith, 14 Abb. Pr,, 62; see also, Coates v. Smith, 1 Duer, 664; Mutual Safety Ins. Co. v. Roberts, 4 Sandf. Ch., 592 ; Cumberland Coal & Iron Co. v. Hoffman Steam, &c. Co., . 39 Barb., 16). Upon the confirmation of this report, therefore, there was nothing left to litigate. The order was to pay, and it unquestionably can be enforced as an order, if not as a judgment. It is certainly a misuse of terms to say that nothing can be entered upon an adjudication of this character, so as to reach the debtor’s real estate, or give a right to supplementary proceedings.
    IY. In California (where the provisions of the Code are the same as that of New York), the entry of judgment upon the referee’ s report was not only sustained, but was expressly ordered. This it is contended is the correct practice.
    Y. It will be recollected, that the right to a judgment is not asked against the sureties, against whom a new suit will undoubtedly be necessary, but between a plaintiff and defendant where all points have been conclusively adjudicated. Interest reipublicce est sit finis litium {Broom's Maxims').
    
    YI. The plaintiff having known of this judgment since December, 1868, and promised to pay it, it is now too late for this motion, particularly as the claim is conceded to "be due, and the equities are all in favor of the defendant.
   Ingraham, J.

On the dissolution of an injunction the defendant obtained an order of reference to assess the damages on the undertaking.

The undertaking was only signed by the sureties. The referee reported the amount of damages sustained, which report was confirmed, and it was decided that the defendant was entitled to recover the same of the plaintiff.

The same not being paid on demand, the defendant entered judgment on the report. So far as the sureties are liable, I do not think a judgment against them would be regular, unless an action was commenced and summons served, or at least until notice had been given to them of the hearing before the referee (12 Abb. Pr., 189 ; 15 Id., 427). Nor do I see the propriety of entering a judgagainst the plaintiff.

The defendant has two ways of enforcing a recovery on the undertaking,—one by an action, the other by a reference. In the first, he proceeds to judgment; in the other, he applies to the court for an order directing the payment of money, and enforces it in the same manner as other orders of a similar character.

When the plaintiff has not signed the undertaking, there can be no propriety in entering a judgment against him, and the only proceeding against him would be by an order of the court, directing him to pay the damages.

I see no way in which this judgment can be sustained.

In granting the motion, I do not award costs, and the order must be without prejudice to any other proceedings the defendant may take, either by action on the undertaking, or on the report, or by proceeding by way of attachment.

• The motion was granted upon these conditions.  