Opinion
March 10, 1930.
Appeal from Supreme Court of New York County.
John B. Doyle, for the appellant.
Samuel J. Siegel, for the respondent.
Judgment was entered in this cause dismissing the complaint, which judgment was affirmed on appeal ( 227 App. Div. 715), and there has been a final determination of the action.
The defendants, Aracoma-Kenton Company, Inc., and Aracoma Drapery Fabrics Company, Inc., have moved below for the appointment of a referee to determine what damages have been sustained by these companies because of the injunction order now dissolved. This motion was granted at Special Term but provided only for ascertainment of the damages sustained by the defendant Aracoma-Kenton Company, Inc. The Aracoma Drapery Fabrics Company, Inc., was not mentioned in that order, nor was it included (by reference) in the direction.
The appellant contends that the attorney for both defendants in the motion made to vacate the injunction order appeared only for the Aracoma-Kenton Company, Inc., and that he did not appear specially for the Aracoma Drapery Fabrics Company, Inc.
A motion to resettle the order to ascertain damages was made which requested that the defendant Aracoma Drapery Fabrics Company, Inc., be included in the reference to assess damages, and the motion to resettle the order was granted.
Plaintiff urges that the resettled order should be modified by striking out the reference to ascertain any damages sustained by defendant Aracoma Drapery Fabrics Company, Inc., because of the issuance of the injunction order, because an order in the action dated August 22, 1927, unappealed from and not resettled, continuing the ex parte injunction order of August 13, 1927, is conclusive on the remedy asked since there was no appearance for the defendant Aracoma Drapery Fabrics Company, Inc., recited, either general or special, to oppose the motion to continue said ex parte injunction order when it was granted.
In the order entered upon the motion to continue said ex parte restraining order the appearances are specifically recited and no appearance is asserted on behalf of the defendant Aracoma Drapery Fabrics Company, Inc.
The appearance or non-appearance of that corporate defendant upon the motion for temporary injunction in this action has thus been conclusively determined by the recitals of the order made upon that motion, and there was no authority to find any further appearance for the purpose of ordering an assessment of damages against the plaintiff in favor of said additional corporate defendant.
The record now here contains nothing to substantiate the claims of respondent. The original papers are not printed in the present record. They may be found in the printed record on an appeal from a motion to vacate service of summons. (See 224 App. Div. 723.) The court is bound by the recital in the order granting the injunction as to the appearances.
The order so far as appealed from should be reversed, with ten dollars costs and disbursements, and motion for a reference to ascertain the damages sustained by defendant Aracoma Drapery Fabrics Company, Inc., denied.
DOWLING, P.J., MERRELL, FINCH and O'MALLEY, JJ., concur.
Order so far as appealed from reversed, with ten dollars costs and disbursements, and motion for a reference to ascertain the damages sustained by defendant Aracoma Drapery Fabrics Company, Inc., denied.