Langdon v. Gray
New York Supreme Court
Appeal from an order confirming the report of a referee appointed to fix the amount of damages sustained, by reason of a temporary injunction granted herein.
Read the full summary
Appeal from an order confirming the report of a referee appointed to fix the amount of damages sustained, by reason of a temporary injunction granted herein. The plaintiff, brought an action against the defendant Gray alone, to restrain the enforcement of a foreclosure decree on premises No. 281 Fourth avenue, and procured a temporary injunction so restraining him and his servants and agents, with an order to show cause why the same should not be continued., Before the hearing of the motion Gray answered, setting up as a defense that he had sold the decree to Phelps, and had no interest…
1Opinion of the Court
Barrett, J.:
The evidence taken before the referee was limited to the value of the attorneys’ services upon the motion for a continuance of the injunction pendente Ute. The referee allowed the value of such services (fixed at $650) as damages sustained by reason of the injunction. In this we think he erred. It was held in Childs v. Lyons (3 Robertson, 704) and in Allen v. Brown (5 Lans., 511) that the costs and counsel fees of an unsuccessful effort to remove an injunction were not recoverable as damages arising from its existence. This rule does not apply where the continuance of the…
2Cases cited2 opinions
- Andrews v. . the Glenville Woolen Co.New York Court of Appeals · 1872
- Allen v. BrownNew York Supreme Court · 1872