Summary
In Musgrave v. Sherwood (53 How. Pr. 311) the Supreme Court, on application for a preliminary injunction, delivered an opinion in which the argument of "difference in degree and not in kind" was strongly emphasized, but when the case came on for trial the court held that a family hotel, provided with separate suites of rooms for each family, and a dining room common to all, was not repugnant to a covenant prescribing that premises should not be used for "any stable, tenement house, coal yard, slaughter house," etc.
Summary of this case from Kitching v. BrownOpinion
Argued January 28, 1879
Decided February 11, 1879
B.F. Lee, for appellant. Miles Beach, for respondent.
Each of the undertakings given by the plaintiff provided for the payment to the defendant of such damages as he might sustain by reason of the injunction, if the court should finally decide that the plaintiff was not entitled thereto.
The decision of the Special Term, if allowed to stand, was a determination of the case. But when an appeal was perfected by the execution of the bond required by the Code, the final decision was postponed until that appeal was decided. In the meantime, the defendant has no claim to an order of reference to assess the damages. The plaintiff having appealed, and executed the proper undertaking, it cannot be claimed that there has been a final determination of the cause. ( Palmer v. Foley, 71 N Y, 106.) It still remains undetermined, and the final result cannot be known until the appellate tribunal has passed upon the case.
None of the authorities cited by the appellant's counsel hold that when an appeal has been taken, an order of reference may be entered, to assess damages arising from an injunction. ( Methodist Churches of New York v. Barker, 18 N.Y., 463; Parke v. Musgrave, 6 Hun, 223; Lawton v. Green, 64 N.Y., 326; Disbrow v. Garcia, 52 id., 654.) Cases may arise where it would be the duty of the court to order a reference. But any general rule different from that stated would lead to great inconvenience. A reference ordered to ascertain the amount of damages would create large expense, and be of no avail, if the judgment was finally reversed. It would, indeed, be somewhat unusual, under ordinary circumstances, that the execution of the judgment should be stayed and, at the same time, a proceeding going on for the assessment of damages, which perhaps might be collected pending the appeal, or if not collected, and the judgment was reversed, the proceeding would be of no avail.
The defendant is secured by the undertakings given before the injunction, and usually can suffer no loss by waiting until the decision of the case, before proceeding to assess his damages.
The Special Term was right in denying the motion; and the order appealed from must be affirmed, with costs.
All concur.
Order affirmed.