Summary
In Randall v. Carpenter (supra) the injunction was temporary, and there was no prayer for its continuance as a part of the final relief sought in the action; and as the services which had been rendered consisted of an unsuccessful endeavor to show cause why the injunction should not be continued, it was held that the expenses thus incurred were not damages by reason of the injunction which had been granted.
Summary of this case from Perlman v. BernsteinOpinion
Argued February 28, 1882
Decided March 7, 1882
Samuel H. Randall, plaintiff, in person. Edward P. Wilder for defendant.
The defendant's appeal relates only to the disallowance of fees paid or estimated for other services than those made necessary by the injunction, and is thus brought directly within the case of Newton v. Russell (Court of Appeals, January 24, 1882). It must therefore fail. The plaintiff's appeal must succeed. The injunction was temporary and there was no prayer for its continuance as part of the final relief sought in the action. The services for which compensation has been allowed were rendered in a vain effort to show cause why "an injunction should not be granted." Having been thus unsuccessful in resisting the allowance of the injunction, there is no ground upon which the sureties can be required to pay these expenses, or the expenses of the reference ordered on defendant's motion to ascertain the damages by reason of the injunction.
No damages other than counsel fees were found to have been sustained by the defendant, and as the plaintiff is not liable for those, he should not be required to pay for the inquiry.
The order appealed from by the plaintiff should be reversed, and the order appealed from by the defendant should be affirmed, with costs of one appeal to the plaintiff.
All concur, except RAPALLO, J., absent.
Ordered accordingly.