
    Thomas C. O’Connor, App'lt, v. The New York and Yonkers Land Improvement Company et al., Resp’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed May 7, 1894.)
    
    
      t. Costs — Injunction.
    The costs and expenses of a reference to assess the damages resulting from an injunction, are recoverable.
    
      
      2. Former adjudication — Between defendants.
    A judgment for or against the plaintiff is not res adjudicata of the matters determined, in favor of one defendant as against a co-defendant, where they were not joint and no issue between them was tendered or litigated.
    8. Same.
    A judgment, which determines a question, upon the basis of which a reference to assess damages is directed, estops the parties from litigating the same question upon the reference.
    4. Evidence — Damages — Injunction.
    In an action to recover damages resulting from an injunction, evidence to show that further speculation with the subject matter enjoined might have reduced the loss, is incompetent.
    Appeal from an order confirming the report of a referee in proceedings for the assessment of damages occasioned by an injunction order granted pendente lite.
    
    
      Reeves & Todd, (.Ambrose G. Todd, of Counsel), for app’lt; Francis B. Ohedsey, for resp’ts.
   Bischoff, J.

No error is is predicable of the award of costs and expenses of the reference to assess the damages resulting from the injunction. Lawton v. Green, 64 N. Y. 326, is to the effect that such costs and expenses are not recoverable, except as part of the damages secured by the undertaking given when the injunction order was obtained, but that case was decided with regard to the provisions of the Code of Civil Procedure, which was then in force. The Code of Civil Procedure, however, has since expressly provided for their recovery. Section 623 authorizes a reference in proceedings to assess the damages resulting from an injunction. Section 8236 provides for the allowance of motion costs, in the discretion of the court or judge, upon a reference made pursuant to § 623 ; and section 3251 further provides that upon a reference specified in section 3236 the court or judge may award costs not exceeding ten dollars, besides necessary disbursements for referees’ fees. As part of its damages the defendant corporation claimed the purchase money agreed to be paid by Edwards and Lowerre upon the sale to them of an option for 'the purchase of a tract of land, which purchase-money defendant maintained, was lost to it because of its inability to conclude the sale to Edwards and Lowerre by reason of the injunction. Upon the hearing before the referee, the defendant gave in evidence a judgment-roll in an action in the Superior Court of the city of New York, wherein Edwards and Lowerre were plaintiffs and the plaintiff and defendant in this action were co-defendants. The superior court action was brought to enforce the specific performance of an alleged contract for the sale of the option to Edwards and Lowerre and to restrain the sale of the option to the plaintiff in this action. Both defendants in the superior court action answered the complaint therein, the defendant corporation admitting the contract with Edwards and Lowerre and claiming the agreed purchase-money, the defendant O'Connor denying it. The only issue tendered by the pleadings, and litigated, arose between the plaintiffs and defendants. Ho issue arose, or was litigated, as between the defendants, and nothing was determined as between the latter. The court found as matters of fact that the contract with Edwards and Lowerre was made but that neither party thereto was ready to perform. Hence a judgment for both defendants for dismissal of the complaint, upqn the merits, without costs to either party resulted. A judgment rendered in an action for or against the plaintiff therein is not res adjudícala oí the matters determined, in favor of one defendant as against a co-defendant, where1 the in- ■ interests of the defendants were not joint, and no issue between them was tendered or litigated. Neither of such defendants is estopped from disputing the matter so determined as against the other. Am. & Eng. Ency. of Law, vol. 21, p. 152 ; Black on Judgments, vol. 2, sec. 599; Freeman on Judgments, 4th ed., sec. 158; McMahan v. Geiger, 39 Am. R. 489; Beveridge v. N. Y. El. R. R. Co., 112 N. Y. 19; 20 St. Rep. 962. Unless, therefore, plaintiff was otherwise estopped, it was error on the part of the referee to exclude evidence offered for the plaintiff which tended to show that no contract for the sale of the option to Edwards and Lowerre was in fact made. That the evidence excluded was material is apparent from the fact that the damages claimed by and awarded to the defendant corporation-arose exclusively from the alleged loss of the purchase money agreed to be paid to it by -Edwards and Lowerre. It was, however, among the facts determined by the judgment in this action, upon the footing of which the-reférence to assess damages was directed, that such a contract was entered into. Hence the plaintiff was thereafter estopped from litigating the same question and the evidence offered was for that reason properly excluded. The referee did nbt err in his exclusion of evidence by which it was sought to show that a further speculation upon the part of the defendant corporation with regard to the land constituting the subject matter of the option might have resulted in some reduction of the loss which ensued from non performance of the contract with Edwards and Lowerre. 'No such hazardous embarkation was required of the defendant corporation. Roberts v. White, 73 N. Y. 375. The evidence is abundantly to the effect that Edwards and Lowerre, at the time appointed therefor by the terms of their contract with the defendant corporation, were ready and able to complete the purchase of the option by payment of the agreed purchase money, and that the defendant corporation was prevented from completing the sale, by acceptance of the purchase-money and transfer of the option, by means of the injunction obtained at plaintiff’s instance. Whether or not, Edwards and Lowerre, with or without the aid of a proposed syndicate, were able to avail themselves of the option by the purchase of, the land, which was the subject matter of the option, was a totally irrelevant and immaterial inquiry. Having realized the purchase-money for the sale of the option the defendant corporation was not thereafter to be affected, either beneficially or injuriously, by Edwards and Lowerre’s failure to benefit from the option acquired by them.' 'All evidence, therefore, offered on plaintiff’s, behalf to the effect that the proposed syndicate was never formed was irrelevant and immaterial, and upon that ground properly excluded. Other exceptions.which appear from the record are not specially urged upon this appeal, and upon examination do not require a reversal of the order. Order affirmed with costs and disbursements.

Daly, 0. J., and Pryor, J., concur.  