De Berard v. Prial
Appellate Division of the Supreme Court of the State of New York
Appeal from special term, New York county. Injunction proceedings by Frederick B. De Berard against F. E. Prial and others being dismissed, a reference to assess defendants’ damages on the bond, for the writ was granted, and plaintiff appeals.
1Opinion of the CourtBarrett, J.
The complaint here was dismissed for failure t© prosecute. Upon that dismissal final judgment was entered. The defendants thereupon moved for a reference to assess the damages which they claim to have sustained by reason of an injunction granted to the plaintiff at the commencement of the action. The plaintiff insisted below, and insists here, that the judgment does not determine that he was not originally entitled to the injunction, and consequently that there has been no breach of the undertaking given thereupon. In this he is in error. The authorities are all one way upon the question.…
2Cases cited3 opinions
- Apollinaris Co. v. VenableNew York Court of Appeals · 1892
- Manning v. CassidyNew York Supreme Court · 1894
- Manufacturers' & Traders' Bank v. FolkNew York Supreme Court · 1893
3Cited by2 opinions
- Kraft v. GoldsteinOhio Court of Appeals · 1931
- Sheridan County Electric Co-Op., Inc. v. FergusonMontana Supreme Court · 1951