Opinion
April 9, 1915.
Charles Goldzier [ Norbert Blank with him on the brief], for the appellant.
Thomas F. Curran, for the respondents.
It seems clear that the trial and defendant's resulting appeal therefrom did not essentially involve the issue whether or not plaintiffs should have the injunction, since no permanent injunction was granted, or had been prayed for in the complaint. The injunction was sought merely as incidental relief, so as to retain possession of the saloon pending the judgment. The judgment for plaintiffs merged in it this preliminary injunction. Thereafter the judgment itself, and not any provisional or collateral remedy, entitled plaintiffs to possession and excluded any interference by defendant. Hence this occupation and the exclusion of defendant from enjoyment under the lease after the judgment did not constitute a damage by reason of the injunction, recoverable from plaintiffs or their surety. (High Inj. [4th ed.] § 1686; Joyce Inj. §§ 207, 208, 216; Disbrow v. Garcia, 52 N.Y. 654; Newton v. Russell, 87 id. 527, 531; Granulator Soap Co. v. Haddow, 159 App. Div. 563; 22 Cyc. 1055.) The learned justice at Special Term, therefore, rightly excluded any loss of profits or rental after entry of judgment. By his correction, the stipulated figures for the pro rata value of the lease, and the estimated profits of traffic in beer, were adjusted to the actual period under the injunction, which was no departure from the basis of these damages as stipulated upon the reference.
He, however, allowed $150 counsel fees rendered and incurred in connection with the temporary injunction, also $150 for counsel's services about the trial, with $150 counsel fee upon this reference. For the reasons stated, he disallowed fees on appeal from the judgment, since that appeal concerned plaintiffs' equitable rights under the pleadings, which sought neither permanent injunctive relief nor to continue any temporary injunction. In this we think the learned court was supported by authority. ( Strong v. De Forest, 15 Abb. Pr. 427; Hovey v. Rubber-tip Pencil Co., 50 N.Y. 335.)
The appellant, however, urges that it should have had counsel fees upon the unsuccessful appeal from the injunction order. This court being always loath to interfere with the discretion of the Special Term in granting or refusing injunctions ( Heim v. New York Stock Exchange, 138 App. Div. 96), the quicker and surer way to test the restraining order was to proceed to trial in October, rather than to remain under the injunction, with the doubtful prospect of its reversal by appealing from the order. Furthermore, the expenses of an unsuccessful motion to dissolve an injunction have not generally been recoverable. ( Allen v. Brown, 5 Lans. 511, 514; Randall v. Carpenter, 88 N.Y. 293; Lyon v. Hersey, 32 Hun, 253.) Hence we see no ground to vary this part of the order.
It is further maintained that the learned court allowed counsel too small fees. But the injunction was merely auxiliary to the main contest, and the fees here recoverable are not for the successful defense of a hard-fought litigation, but only for such legal services as related strictly to this provisional remedy. The fee to counsel at the trial was not for the entire preparation and the conduct of that hearing, but for those services necessary therein, in so far as that labor was increased by the injunction. This is the limit of the liability of plaintiffs and their surety. (See Littleton v. Burgess, 16 Wyo. 58; 16 L.R.A. [N.S.] 49, 66.) Outside the letter of this undertaking, there is no such recovery, since taxable statutory costs are all the legal expenses that the successful party may impose on its adversary. Such liability of the surety is confined stricti juris to the direct effect of the injunction, regardless of the general merits of the controversy. The court has, therefore, to be vigilant to see to it that such liability is kept within just and reasonable bounds, so that, in enforcing it, the court itself is not made the instrument of injustice and oppression. ( Cook v. Chapman, 41 N.J. Eq. 152, 159.)
The order modifying the report of the referee should, therefore, be affirmed, with ten dollars costs and disbursements.
JENKS, P.J., BURR, CARR and RICH, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.