Jordan v. Donnelly

The undertaking, conformably with section 620, Code Civil Proc., provides that “the plaintiff will pay the party enjoined such damages * * * as he may sustain by reason of the injunction, if the court i 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 hence 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 ea; 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 N. Y. 865; Prefontaine v. Richards, 47 Hun, 418. In the present case it is sufficiently shown that it has been made. Waterbury v. Bouker, 10 Hun, 262; Jacobs v. Miller, 11 Hun, 441; Vanderbilt v. *837Schreyer, 28 Hun, 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 maybe a pertinent-inquiry upon the assessment of her damages. Order affirmed, with $10 costs and printing disbursements. All concur.