
    GRAINGER v. SMYTH et al.
    (Supreme Court, General Term, Fifth Department.
    June 23, 1893.)
    Injunction—Termination op Action—Reverence to Ascertain Damages.
    At the time set for the trial of a cause in which a preliminary injunction had been granted, the parties appeared, but plaintiff submitted no evidence to support his complaint. Defendant introduced evidence in support of his counterclaim, and judgment was entered dismissing the complaint, and awarding to defendant the amount of his counterclaim. Held, that such judgment was a final determination that plaintiff was not entitled to the injunction, within Code Civil Proc. § 620, providing for a reference to ascertain damages in case of such final determination.
    Appeal from special term, Monroe county.
    Action by William A Grainger against Thomas A. Smyth and others. From an order denying a motion to confirm the report of a referee appointed to ascertain the damages sustained by defendants by reason of a temporary injunction issued in the action, defendants appeal.
    Reversed.
    Argued before LEWIS, HAIGHT, and BRADLEY, JJ..
    Richard Van Voorhis, for appellants.
    John M. Murphy, for respondent.
   HAIGHT, J.

This .action was brought to dissolve a copartnership, and for an accounting. The plaintiff asked for a temporary injunction restraining the defendants from collecting, receiving, or in any manner interfering or meddling with or disposing of the partnership debts, moneys, notes, or other property, and that a receiver be appointed. A temporary injunction was issued upon the complaint and the affidavit of the plaintiff verifying the matters alleged therein, which was served with the summons and complaint. The defendants answered, putting in issue the allegations of the complaint upon which the plaintiff’s right of action depended, and setting up a counterclaim. Upon a stipulation of the parties the case was referred to a referee to hear, try, and determine. Upon the day appointed for the trial before the referee the parties appeared by their attorneys, but the attorney for the plaintiff submitted no evidence in support of the allegations of Ms complaint. The defendants produced testimony sustaining their counterclaim, and thereupon the referee made his report, upon which judgment was entered dismissing the plaintiff’s complaint, and awarding judgment in favor of the defendants for the amount of their counterclaim. Thereafter, upon the motion of the defendants, an order of reference was made to ascertain the damages sustained by them by reason of the temporary injunction. A hearing was had before the referee, who made Ms, report to the effect that the defendants had suffered damages in the sum of $173. A motion was thereupon made at the Monroe special term to confirm the report, and it was thereupon “ordered that the motion to confirm said report be, and the same is hereby, denied, upon the ground that it does not appear from the judgment in the action that the court has decided that the plaintiff was not entitled to such injunction order, and therefore the defendants are not in a position to demand any damages by reason of such injunction order.” From tMs order the defendants appeal to this court.

It has been held that where the parties voluntarily settle the action, or where the same has been discontinued upon the application of the plaintiff, or where the same has abated on account of the death of a party, an order of reference will not issue to ascertain the damages sustained by reason of the injunction under section 623 of the Code of Civil Procedure, for the reason that the court has not finally decided that the plaintiff was not entitled thereto under the provisions of section 620. Palmer v. Foley, 71 N. Y. 106-111; Hall v. Sexton, (Super. N. Y.) 3 N. Y. Supp. 549; Johnson v. Elwood, 82 N. Y. 362; Railroad Co. v. Omerod, 29 Hun, 274. But in the case of Steamship Co. v. Toel, 85 N. Y. 646, it was held that where a plaintiff who has obtained a preliminary injunction, after it has been served, enters an order vacating it, and subsequently, without the consent of the defendant, obtained an ex parte order discontinuing the action, these orders are equivalent to a determination that the plaintiff was not entitled to the injunction, and defendant is entitled to an order of reference to ascertain his damages by reason thereof. In Amberg v. Kramer, (Sup.) 8 N. Y. Supp. 821, it was held by the first department that where a temporary injunction had been vacated upon the application of the defendant, the plaintiff consenting thereto, and the action having been discontinued by the plaintiff, there had been a determination that the plaintiff was not entitled to the injunction, and that the defendant was entitled to his order of reference. And in Bank v. Folk, (Sup.) 21 N. Y. Supp. 806, it was also held by the first department that, where the temporary injunction is granted upon the complaint, the plaintiff’s right thereto depends upon the establishment judicially of the facts pleaded, and the dismissal of the action for want of prosecution is a final decision within the provisions of the Code. See, also, Weeks v. Southwick, 12 How. Pr. 170; Taaks v. Schmidt, 19 How. Pr. 413; Cunningham v. White, 45 How. Pr. 486; Carpenter v. Wright, 4 Bosw. 655. In the case of Benedict v. Benedict, 15 Hun, 305, affirmed 76 N. Y. 600, the action was brought to compel a specific performance of a verbal agreement to convey real estate, and a temporary injunction was obtained restraining the defendant from incumbering the place, or collecting rents thereon pending the trial. Upon the trial the referee decided that the agreement was void, but held that the plaintiff had a vendor’s lien upon the land, which he directed to be foreclosed, and ordered a . sale, as in case of a mortgage, making no reference or direction as to the injunction. In that case it was held that the judgment did not determine that the plaintiff was not entitled to the injunction. This, however, was made upon the ground that the judgment was really a determination in favor of the plaintiff, and is not in conflict with the cases above cited.

Upon the case under consideration, as we have seen, there has been a judgment entered after trial, dismissing the plaintiff’s complaint. This is a final determination that the plaintiff had no cause of action. If he had no cause of action, he had no right to a temporary injunction. It follows that the judgment is a final determination by the court that the plaintiff was not entitled to the injunction within the meaning of the provisions of the Code referred to. The order of the special term should be reversed, with $10 costs and disbursements, and the motion granted. All concur.  