Patterson v. Bloomer
New York Supreme Court
Motion to set aside judgment and proceedings thereon. The plaintiff commenced this action to enforce the specific performance of an agreement, for the sale of a quarry, and obtained an injunction, giving the usual bond, in which, however, he did not join as an obligor. •During the pendency of a motion to vacate an injunction, the plaintiff obtained leave to discontinue on payment of costs, and without prejudice to the defendant’s rights on the undertaking.
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Motion to set aside judgment and proceedings thereon. The plaintiff commenced this action to enforce the specific performance of an agreement, for the sale of a quarry, and obtained an injunction, giving the usual bond, in which, however, he did not join as an obligor. •During the pendency of a motion to vacate an injunction, the plaintiff obtained leave to discontinue on payment of costs, and without prejudice to the defendant’s rights on the undertaking. The defendant thereupon moved for a final adjudication, and a reference to compute his damages, and procured a reference, and a report…
1Opinion of the CourtIngraham, J.
On the dissolution of an injunction the defendant obtained an order of reference to assess the damages on the undertaking.
The undertaking was only signed by the sureties. The referee reported the amount of damages sustained, which report was confirmed, and it was decided that the defendant was entitled to recover the same of the plaintiff.
The same not being paid on demand, the defendant entered judgment on the report. So far as the sureties are liable, I do not think a judgment against them would be regular, unless an action was commenced and summons served, or at least until notice had been…
2Cases cited1 opinion
- Fitzpatrick v. FlaggNew York Court of Common Pleas · 1861
3Cited by3 opinions
- Leavitt v. DabneyThe Superior Court of New York City · 1870
- Hill v. ThomasSupreme Court of South Carolina · 1883
- Troxell v. HaynesNew York Court of Common Pleas · 1874