
    Winfield S. Madison, Respondent, v. Charles De Hart Brower, Appellant.
    
      Assessment of damages under an undertaking given on obtaining an injunction — a dismissal of the complaint for want of prosecution of the action is a final determination thereof—whether damages were sustained can only be determined on an investigation.
    
    The plaintiff in an action to recover possession of certain bonds obtained a temporary injunction pending the return of an order to show cause why it should not be continued pendente lite. Upon the return of this order the injunction was continued, on condition that the plaintiff should pay a certain sum to the defendant at a specified time, and that if he failed to make such payment within that time the injunction should be vacated. The plaintiff did not comply with the condition of the order, but took an appeal therefrom- which resulted in its affirmance.
    Thereafter the plaintiff paid a certain sum to the defendant and received the bonds in question. Subsequently. the plaintiff made a motion to discontinue the action, which was granted upon condition that the plaintiff should pay the taxable costs. The plaintiff refused to pay the taxable costs and thereafter the defendant succeeded in having the complaint dismissed for lack of prosecution of the action. The defendant then made a motion for an order directing a reference to ascertain the damages which he sustained by reason of the granting of the injunction..
    
      Held, that the motion should have been granted;
    That the judgment dismissing the complaint was a final determination that the plaintiff was not entitled to the injunction, which determination entitled the defendant to recover, pursuant to the terms of the undertaking given to secure the injunction, whatever disbursements were reasonably made by him in getting rid of it;
    That an order denying the motion could not be sustained on the theory that the defendant did not incur any damages in getting rid of it, as that fact could only be determined upon an investigation.
    Appeal by the defendant, Charles De Hart Brower, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of January, 1903, denying the defendant’s motion for the assessment of damages by reason of an injunction theretofore granted herein.
    
      Charles De Hart Brower, for the appellant.
    
      Henry B. Twombly, for the respondent.
   McLaughlin, J.:

As collateral security for the payment of a loan the plaintiff delivered to the defendant certain bonds, which he refused to return after the amount of the loan and interest thereon had been, offered to him. Thereupon the plaintiff brought this action to obtain possession of the bonds, and procured a temporary injunction pending the return of an order to show cause why the same should not be continued during the pendency of the action. Upon the return of the order to show cause the injunction was continued on condition that within five days the plaintiff pay to the defendant $500 with interest, and that if he failed to make such, payment within that time, then the motion should be denied and the injunction vacated. Such payment was not made within the time provided, but, instead, the plaintiff appealed from the order and the same was affirmed. Thereafter the plaintiff paid to the defendant a specified sum and received the bonds in question. Subsequent to the plaintiff’s receiving the bonds the case appeared upon the calendar for trial, when a motion was made by the plaintiff to discontinue the same, which was granted upon the payment of the taxable costs, which the plaintiff neglected and refused to pay, and thereafter defendant moved to discontinue the action for lack of prosecution. The motion was granted, and then the defendant movéd for an order to ascertain the damages sustained by reason of the granting- of the injunction. The motion was denied, and it is from this order that the present appeal is taken.

The judgment dismissing the complaint was a final determination that the plaintiff was not entitled to the injunction (Be Berard v. Prial, 34 App. Div. 502), and, therefore, the defendant is entitled to recover whatever disbursements were reasonably made by him in getting rid of it.- (Hovey v. Rubber-Tip Pencil Co., 50 N. Y. 335; Rose v. Post, 56 id. 603.) This would include even the expense of a trial, if that were necessary. (Tyng v. American Surety Co., 69 App. Div. 137.) Here a trial does not seem to have been necessary, inasmuch as the efforts of the defendant in opposing the motion to continue the injunction during the pendency of the action were made successful by the plaintiff’s failure to make the payment provided in that order. The motion was for an order directing a reference to ascertain what the expenses were. The undertaking given provided that the expenses might be determined in this way, and we think a reference was, therefore, proper for that purpose.

It is sought to sustain the order upon the ground that the defendant did not incur any. damage in getting rid of the injunction. Whether this be so or not can only be determined upon an investigation, but whatever expenses, if any, were reasonably incurred by-him, either in opposing the continuance of the injunction, or in sustaining the order then made, from which an appeal was taken, he Is entitled to recover.

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Van Brunt, P. J., O’Brien, Ingraham and Laughlin, JJ., «concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  