
    Bridget Jordan, App’lt, v. Margaret Donnelly, Impl’d, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 28, 1890.)
    
    Injunction—Damages.
    In an action to abate a nuisance an injunti'on was obtained ex parte, which was afterwards vacated, no ground being stated in the order. Plaintiff made default and the complaint was dismissed, with costs. Prior to the vacation of the injunction the nuisance was abated by defendant’s tenant. Held, that the conclusion was warranted that the court had finally decided that plaintiff was not entitled to the injunction, and that an action on the undertaking could be maintained.
    Appeal from an order of the special term, appointing a referee to ascertain the damage sustained by the defendant by reason of an ex parte preliminary injunction. The injunction order was served August 30, 1887. It restrained the defendant from suffering rain water to be discharged from a roof upon her premises upon the premises of the plaintiff. The alleged nuisance was abated in October, 1887, by a co-defendant of the respondent, the latter being the tenant of the’former. In February, 1888, the special term, upon motion of the defendants, counsel for plaintiff opposing, and upon the pleadings and various affidavits, vacated the injunction order. At the circuit in April, 1890, the case coming on for trial, the plaintiff made default and the complaint was dismissed with costs against the plaintiff.- An affidavit on the part of the plaintiff made on information and belief states that the respondent never did anything to comply with the injunction order, but disobeyed and violated the same.
    
      G. D. B. Hasbrouck, for app’lt; John JD. Eckert, for resp’t.
   Landon, J.

The undertaking conformably with § 620, Code Civ. Pro., provides that “ the plaintiff will pay the party §njoined such damages as he may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled thereto.” The order vacating the injunction does not state why it was vacated, and the judgment dismissing the complaint is silent upon this point. The plaintiff thence contends that it does not appear that the court has finally decided that the plaintiff was not entitled to the preliminary injunction, and that there is some ground to suppose that it was vacated because it had accomplished its purpose.

We think this contention untenable. The plaintiff obtained the injunction ex parte. As soon as it was brought to the test of judicial decision upon hearing both sides it was vacated; and when the case was finally brought to trial the complaint was dismissed. We think the conclusion is warranted that the court has finally decided that the plaintiff was not entitled to the preliminary injunction. It is a question of the effect of the evidence. In the cases relied upon by the appellant the final decision had never been made. Benedict v. Benedict, 76 N. Y., 600; 15 Hun, 307; Palmer v. Foley, 71 N. Y., 106 ; Johnson v. Elwood, 82 id., 365; Prefontaine v. Richards, 47 Hun, 418; 14 N. Y. State Rep., 344. In the present case it is sufficiently shown that it has been made. Waterbury v. Bouker, 10 Hun, 262; Jacobs v. Miller, 11 id., 441; Vanderbilt v. Schreyer, 28 id., 61.

The suggestion that the alleged nuisance was abated before the injunction was vacated, does not affect the question. The injunction was first obeyed, and then its merits contested.

Whether the respondent has been put to any trouble by reason of the injunction may be a pertinent inquiry upon the assessment of her damages.

Order affirmed, with ten dollars costs and printing disbursements.

Learned, P. J., and Mayham, J., concur.  