which may be recovered by him in the action stayed by the injunction, not exceeding a sum specified in the undertaking, and also all damages and costs that may be awarded to him in the action in which the injunction order is granted. Source CCP § 611, amended as indicated by brackets; amendment is to conform to a general section, relating to provisional remedies, which requires security in all cases where it is not dispensed with by statute, leaving only the terms of the undertaking to be defined in the provisions relating to each particular remedy-Revisers' Note. Star (*) means read Not into note heading. History-At common law no liability for wrongful injunction, except malicious prosecution (Yonkers 221 NY 206; Snyder 106 Mis 440, 174 NYS 729). Distinguished from-Bond of assignee for benefit of creditors, principal's obedience of order or performance of determination against him (PvWhite 28 Hun 289). Compared with-Liability on sheriff's bond, proof of recovery by party joined establishes liability (PxTuthill 25 Hun 525). Stay of proceedings in of another court (Deyo 14 NYS 841). Failure to require security-No fundamental defect in moving papers (Werbelovsky 106 AD 138, 94 NYS 156). Proceedings stayed on insolvency of surety*Remedy by ordering to file new undertaking and dissolving injunction for not doing so (Randall 22 Hun 571). Damages included-*Equitable counterclaim setting up default of chattel mortgage (BraceCo 196 NY 468, afg 126 AD 924, 111 NYS 1110). Section construed-In the light of common-law rule (Yonkers 221 NY 206). § 885. Security to stay proceedings after trial and before judgment. An injunction order shall not be granted, to stay proceedings in an action specified in the last section, after verdict, report or decision, and before final judgment thereupon, unless a sum money sufficient to cover the sum awarded by the verdict, report or decision and the costs of the action, is first paid by the party applying for the injunction into the court in which his action is commenced or an undertaking is given [in lieu thereof,] as [hereinafter] prescribed in this article. Source CCP 612, substance unchanged-Revisers' Note. § 886. Security to stay proceedings after judgment. An injunction order shall not be granted to stay proceedings upon a judgment for a sum of money unless the following requisites are complied with by the party applying therefor: 1. The full amount of the judgment, including interest and costs, must be paid by him into the court in which his action is commenced; or an undertaking in lieu thereof must be given, as [hereinafter] prescribed in this article. 2. He must also give an undertaking, with sufficient sureties, to pay to the party enjoined, all damages and costs which may be awarded to him by the court in the action in which the injunction order is granted, not exceeding a sum specified in the undertaking. Source CCP 613, substance unchanged-Re- | Hun 465). visers' Note. Star (*) means read Not into note heading. Applicable to-Ordinary action (Carter 150 NY 532). Sheriff's sale under execution on judgment (VanGelder 26 Hun 362). *Standard of damages on review determination of where no findings by referee and no proof of damages (Packer 67 NY 550). Vacation of chattel mortgage in fraud of creditors and enjoining enforcement of rights thereunder (Sweetser 5 NYS 378). Security required-Action on bond (Eastman 22 Payment into court sufficient--Full amount of judgment enjoined, including interest and costs. paid in by officer levying execution thereunder (NY&NJTelCo 128 AD 220, 112 NYS 612). Undertaking limited-Amount specified by court or judge (Yonkers 221 NY 206). Undertaking sufficient Injunction against enforcement of judgment (Fullam 66 How 75). Injunction against payment by sheriff of proceeds of judgment sale (Ingalls 51 AD 305, 64 NYS 911). $ 887. Payment over of money deposited. Money paid into court, as prescribed in the last two sections, may be paid over, by the direction of the court, to the party whose proceedings are stayed, upon his giving an undertaking to the people of the state, with sufficient sureties, in a sum fixed by the court, to pay the money and interest, or any part thereof, as directed in the order or judgment of the court. Source CCP 614 unchanged-Revisers' Note. § 888. Cancellation of undertaking of successful party. Where money so paid into court has been paid over to the party whose proceedings are stayed, if the final decision of the action in which the injunction order is granted is against the party obtaining it, the court must give such directions as justice requires, with respect to canceling the undertaking given by the successful party; making perpetual the injunction staying collection of judgment; and requiring the judgment to be discharged of record. Source CCP 615 unchanged-Revisers' Note. § 889. Terms of undertaking on staying proceedings after verdict in ejectment or dower. [The undertaking, to secure the party enjoined, where the injunction order is] to stay proceedings in an action of ejectment, or for dower, after verdict, report or decision, [shall be to the effect that the party applying for the order] will pay to the party enjoined, or his representative, all damages and costs, not exceeding a sum specified in the undertaking, which may be awarded to him in the action wherein the injunction was granted. Source CCP § 616, amended as indicated by Undertaking required-Injunction against action brackets; amendment is to conform to the gen- or proceedings against tenant pending determinaeral section, relating to provisional remedies, tion of action for specific performance of assignwhich requires security in all cases where it is ment of remainder of lease (Weinstein 192 AD not dispensed with by statute, leaving only the 326, 182 NYS 327). terms of the undertaking to be defined in the Undertaking limited-Sum specified by court or provisions relating to each particular remedy-judge (Yonkers 221 NY 206). Revisers' Note. § 890. Damages in ejectment or dower to include waste. Where an undertaking is given, as prescribed in the last section, the damages to be paid upon the vacating of the injunction order, or the decision of the action against the party obtaining it, include, not only the reasonable rents and profits of the real property recovered by the verdict, report or decision, but all wastes committed upon the property after the granting of the injunction. Source CCP § 617 unchanged-Revisers' Note. § 891. Undertaking in lieu of deposit. In a case where money is required by the foregoing sections of this article to be paid into court, the court or judge may dispense with the payment, and may require the party to give, in lieu thereof, an undertaking, with two or more sureties, to pay the sum specified, with interest, as directed by the court. If an undertaking is required, in addition to the deposit, both undertakings may be contained in the same instrument, at the election of the party applying for the injunction. Source CCP § 618 unchanged-Revisers' Note. Security required-Action on bond (Eastman 22 Hun 465). § 892. Security for injunction to stay proceedings on ground of fraud. If the injunction order applied for is to stay proceedings in another action on the ground that a judgment, verdict, report or decision therein was obtained by actual fraud, the court or judge may allow the party applying for the order to give an undertaking to the effect, and executed, as prescribed in the next section, in lieu of any other undertaking or any deposit. Source--CCP § 619. rewritten-Revisers' Note The statute from which CCP § 619 was derived (RS. pt 3. c 1, tit 2, art 5, § 147) permitted the chancellor to dispense with security absolutely, where the injunction was to stay proceedings on the ground of fraud. There was an attempt, by CCP $619, to change this; but the language leaves a doubt as to whether the plaintiff could make a deposit, instead of giving an undertaking, even if he so desired. The reference in CCP § 619 to the "next section" (§ 620) also is ambiguous, because § 620 does not apply to a case where security is "dispensed with.' The Committee has attempted to express the purpose of § 619. Applicable to-Action or proceeding in marine city court CCP 8 3160 (PvLevy 16 Mis 619, 40 NYS 743). § 893. Security generally, to obtain injunction order. [Except in the cases specified in sections eight hundred and eighty-four, eight hundred and eighty-six, eight hundred and eighty-nine, eight hundred and ninety-one, or where] special provision is not made by law for the security to be given upon an injunction order, [the undertaking to be given by a party applying for an injunction order, may be] executed by him, or by one or more sureties, as the court or judge directs, [and shall be] to the effect that the plaintiff will pay to the party enjoined, such damages, not exceeding a sum, specified in the undertaking, as he may sustain by reason of the injunction, if the court finally decides that the plaintiff was not entitled thereto. entitled thereto" was contained in Code of 1848 § 195 and remains in CCP (ManufacturersBank 67 Hun 44, 21 NYS 806). Source CCP 620, amended without changing court finally decides that the plaintiff was not the effect, except to eliminate the direct statement that security must be given-Revisers' Note. The giving of security for obtaining any of the three provisional remedies of arrest, injunction and attachment, is required by a general section. History CCP § 222 related to same matter (Snyder 106 Mis 440, 174 NYS 729). "If the Distinguished from-Security given under CCP § 611 (See SeaboardBank 158 NYS 250). Compared with-Act of 1881, bond thereby re quired not dispensed with (Note 22 AbNC 961. CCP § 629, liability on vacating bond (DeCamp | not stated (Williams 148 NY 519). *dismissal 33 AD 517, 53 NYS 1035). CCP 1990 amended and dissolution of injunction (Apollinaris 136 1894, liability of municipal corporations (Yon- NY 46, rvg 63 Hun 554, 18 NYS 535), evidence kers 221 NY 206). CCP § 3236 not allowing costs insufficient, judgment on counterclaim (Grainger (Fine 105 Mis 318, 173 NYS 137). 70 Hun 9, 23 NYS 934), *findings, none made Bars-Stay of proceedings by order of supreme by referee as to right to injunction (Bennedict court in surrogate's court (Deyo 14 NYS 841). 76 NY 600; Kelly 32 Hun 349), prosecution, want Security required-Leave to renew application of when injunction granted on verified complaint, with proper undertaking (Kane 161 NYS 1130). not on affidavits (Manufacturer'sBank 67 Hun On enjoying particular acts or proceedings: fore- 44, 21 NYS 806), *referee's report refusing to closure of chattel mortgage, injunction by insol- hear case on merits, dismissing complaint and vent plaintiff (NYAttritionCo 2 Hun 373). Lease, not deciding right to injunction (Kelley 32 Hun mandatory injunction to permit lessee to enter 349; See Benedict 76 NY 600). Stipulation to premises and to have access thereto (Koenig 176 dismiss complaint on affirmance of order on merAD 726, 163 NYS 1019). Real property, sum- its (NYCity WaterCo 78 Hun 176, 28 NYS 938). mary proceedings to recover possession (Potter Dissolution of injunction: and discontinuance of 59 AD 140, 69 NYS 183). Security, disposition action (PacificMailCo 85 NY 646), preliminary of goods held as (Howley 127 AD 646, 111 NYS injunction, followed by opposed discontinuance of 1080), transfer of stock indebtedness for which action (Wynkoop 63 Hun 500, 18 NYS 557; Jorstock held as security (AmSavBank 135 AD 371, dan 11 NYS 836), *on motion to continue tempor120 NYS 397). ary injunction (Slingerland 115 AD 15, 100 NYS 569). Bond cancelled-*Pending appeal from final judgment granting permanent injunction (Vitagraph Co 170 NYS 527). Damages allowed-*Discontinuance of action but right to injunction (NYWS&BRy 29 Hun 275). Right to determination of right to injunctionDetermination of costs (Kelley 37 Hun 213). Liable on undertaking-*Corporation officer, presi dent executing bond in official capacity and not as agent (Episcopal Church 28 Barb 644). Plaintiff giving undertaking but not joining in its execution (Snyder 106 Mis 440. 174 NYS 729). Scope and extent of liability-Joint and several, determined from language and intent of parties (Episcopal Church 28 Barb 644). Litigation expenses, order does not enlarge bond (AmNatBank 210 NY 425). Order for security sufficient-Tho no direction for undertaking (Manley 62 Hun 562, 17 NYS 68). Undertaking sufficient in form-Under seal and taking the form of penal bond (Episcopal Church 28 Barb 644). Security sufficient-For full indemnity (Smith 167 NYS 1127), $30.000. demolition of building (HeckscherCorp 113 Mis 184. 184 NYS 624). Proceedings stayed on insolvency of surety-*Remedy by dissolution of injunction unless sufficient surety supplied (Randall 22 Hun 571). Decision final Appeal from judgment pending (Musgrave 76 NY 194). Discontinuance of action: after affirmance of continuance of injunc tion (Hall 3 NYS 549), objection by defendant to discontinuance (NYC&HRRCO 9 AD 256. 41 NYS 492; Manning 80 Hun 127. 30 NYS 23: Wynkoop 63 Hun 500, 18 NYS 557: Jordan 11 NYS 836; Amberg 8 NYS 821). *subject matter of action ceasing, public office abolished pending action to test claim thereto (Palmer 71 NY 106). Dismissal of complaint: cause of action Necessary parties to action on bond-*Codefendants not affected by order vacating injunction as to codefendant suing (FourthNatBank 31 Hup 301). § 894. Damages; how ascertained. The damages sustained by reason of an injunction may be ascertained and determined by the court, or by a referee appointed by the court, or by a writ of inquiry, or otherwise, as the court shall direct; and the decision of the court thereupon, or an order confirming the report of the referee, is conclusive as to the amount of those damages, upon all the persons who have executed the undertaking, unless it is reversed upon appeal. The court, in its discretion, may direct that the sureties have notice of the hearing or of an appeal, and may prescribe the time and manner of giving them notice. Source CCP § 623 unchanged-Revisers' Note. | 184 NYS 338: *Sarafran 152 NYS 737) but only Star (*) means read Not into note heading. Compared with CCP § 611. "damages" do not include counterclaim based on default of chattel mortgage (BraceCo 196 NY 468). CCP 1015. items not allowed in receivership. counsel fee (Fine 105 Mis 318. 173 NYS 140). CCP 3253. extra allowance under (Hathorn 179 AD 425, 165 NYS 1044). References in claims against corporate receiver's estate (PvRemington 45 Hun 347). Who may assess damages *State court after removal to federal court must make reference to ascertain damages (Byrne 60 Mis 350, 112 NYS 273). *Evidence. one counsel fee (Hotchkiss 8 Hun 46), *resisting injunction (Bock 29 Mis 102. 60 NYS 211: Whiteside 84 Hun 555, 32 NYS 724). *Trial, of action (Newton 87 NY 527: Hovey 50 NY 335: Hotchkiss 8 Hun 46). of motion to dissolve deferred until final hearing (Andrews 50 NY 282), *of order to show cause (White 71 Hun 381. 25 NYS 32), unnecessary, other than necessary by injunction (Randall 88 NY 293). Costs: limit. not exceeding $10 (Harrison 128 AD 460, 112 NYS 834), of reference (Sarafran 152 NYS 737: O'Connor 8 Mis 243. 26 NYS 544). proof of damages (Packer 67 NY 550). *from injunction against sale of stocks (Dwight 54 Barb Right to reference Upon dismissal of complaint 271). *Expenses: defending action (Harrison 75 (Jacobs 11 Hun 442). *Surety's liability beyond Hun 191, 26 NYS 965), dissolution motion deamount of undertaking (Tannenbaum 184 NYS nied not on merits but on deferring of inquiry 338). until final hearing (Andrews 50 NY 282), ratiItems of damages allowed-Attorney's fees: con- road expenses of counsel in travelling to seek tinuance of injunction, prevention of (Sargent judge to vacate injunction (Crounse 32 Hun 497), 190 NY 394). *unopposed (McDonald 47 How reference (Holcomb 119 NY 598; Sarafian 152 474), dissolution, appeal from order of (Roberts NYS 737; O'Conner 8 Mis 243, 28 NYS 544). 73 NY 375) or motion for (Rose 56 NY 603: *where no damages allowed (Randall 88 NY 293: Roberts 73 NY 375) *unsuccessful motion (Lang White 71 Hun 381, 25 NYS 32). *where referdon 22 Hun 511). Highway commissioner's in- ence not sustained (Manufacturers Bank 21 NYS dividually liable (Bayliss 6 Hun 300, afd 67 806). Labor and materials, increased cost of (RobNY 600). Judgment. final in action to deter erts 73 NY 375). Loss: property, selling carpet mine title to personalty, injunction restraining and furniture (Hotchkiss 8 Hun 46). rent (Robits use (Disbrow 52 NY 654). payment of fees, erts 73 NY 375; McDonald 47 Hun 474). Order tho not made (Crounse 32 Hun 497), modifying affirmed in action to determine validity of agree. injunction (London Bank 74 Hun 395, 26 NYS ment to retire bonds in consideration of corpor844), reference (Rose 56 NY 603; *Tannenbaumate consolidation (See ContinentalCo 22 NY 651). *Receiver, allowance for managing property (Hotchkiss 8 Hun 46). *Referee's fees (Harrison 128 AD 460, 112 NYS 834). *Use and occupation, value of in proceedings to enjoin ouster of tenants (McDonald 47 How 474). of damages by further speculation with the realty (O'Connor 8 Mis 243, 28 NYS 544). Decision final Two separate injunctions restraining removal of wall and building upon it, resulting at trial on judgment enjoining removal of wall but giving right to build, the building injunction vacated (Harter 155 NY 211). Conditions precedent to actions on bond-*Assessment of damages (AmExchange 135 AD 371, 120 NYS 397). Necessary parties to action on bond-*Codefendants not affected by order vacating injunction as to codefendant suing (Fourth NatBank 31 Hun Deductions made-*Amount of bid on premises 301). at foreclosure sale cannot be included as payment Venue of reference-District where action tri(Holcomb 119 NY 598). *Reduction of amountable (Wilson 65 AD 249, 72 NYS 578). Damages limited by undertaking-Amount allowed (Lawton 64 NY 326; Roberts 73 NY 375; See PacificSteamshipCo 85 NY 646). *Amount reported (Harrison 128 AD 460, 112 NYS 834). Amount of damages allowed-$173, injunction against collection and disposition of partnership debts, moneys and other property (Granger 70 Hun 9, 23 NYS 934). § 895. Damages sustained by a third person. Where the defendant enjoined was an officer of a corporation, or joint-stock association, or a bailee, agent, trustee or other representative of another, and the damages sustained by him are less than the sum specified in the undertaking, the court or the referee may also separately ascertain and determine the damages sustained by reason of the injunction, by the corporation, association, or person, whom the defendant represents, to an amount not exceeding the surplus of the sum specified in the undertaking; and those damages may be recovered in a separate action brought as prescribed in the next section. Source CCP § 624 unchanged-Revisers' Note. | (Fine 105 Mis 318, 173 NYS 140). § 896. Action on the undertaking. Where the damages have been ascertained by the decision of the court, or the confirmation of a referee's report, as prescribed in the last two sections, any person entitled to the benefit of an undertaking [given to obtain an injunction order or on account of such an order,] pursuant to the provisions of, [or referred to in,] this article, may bring an action thereon without further leave of the 897. Application to vacate or modify without notice. 898. Application to vacate or modify upon notice. 899. When prior motion not to prejudice subsequent application. 900. New undertaking. 901. Effect of verified answer. § 897. Application to vacate or modify without notice. Where the injunction order was granted without notice, the party enjoined may apply, upon the papers upon which it was granted, for an order vacating or modifying the injunction order. Such an application may be made, without notice, to the judge or justice who granted the order, or who held the term of the court where it was granted, or to a term of the appellate division of the supreme court. It cannot be made without notice, to any other judge, justice or term, unless the applicant produces proof, by affidavit, that, by reason of the absence or other disability of the judge or justice who granted the order, the application cannot be made to him, and that the applicant will be exposed to great injury by the delay required for an application upon notice. The affidavit must be filed with the clerk; and a copy thereof, and of the order vacating or modifying the injunction order must be served upon the plaintiff's attorney before that order takes effect. Source CCP § 626 unchanged-Revisers' Note. | son (Porter 30 AD 251, 51 NYS 613), taking Star (*) means read Not into note heading. Persons entitled to move to vacate-Person to whom the money enjoined from payment is payable (Landers 24 Hun 648). possession of personal property sold under execution (NationalGasCo 38 How 271). Orders vacated without notice-*Doubtful case, not clear that papers upon which order granted do not make case for order (O'Neil 172 AD 28. 158 NYS 530). To what court application made-General term: *delay not causing injury (Gere 38 Hun 231), of Third Department in session at Binghamton, order granted by county judge of Madison County (Crounse 32 Hun 497). *Judge holding circuit court in Westchester County for injunction granted first judicial district (Koehler 6 NYS 470). *Special surrogate for injunction granted by county judge in supreme court action (Px Cauffman 18 NYS 734, afd 136 NY 252). Injunction against particular acts or proceedings: for removal of committee for incompetent per§898. Application to vacate or modify upon notice. Where the injunction order was granted without notice, or where it was granted upon notice, with leave to apply to vacate or modify it, the party enjoined may apply, upon notice, to the judge who granted it, or to the court, at a term where a contested motion in the action may be heard, for an order, vacating or modifying the injunction order. Such an application may be founded upon the papers upon which the injunction was granted; or upon proof, on the part of the defendant; or both. Where it is founded upon proof on the part of the defendant, it may be opposed [as a matter of course] by new proof on the part of the plaintiff . tending to sustain the injunction. Orders modified without notice-*After more than a year from service of injunction, no serious loss appearing (Peck 41 Barb 547). Orders modified without hearing-Suspending operation of injunction preliminary to show cause until hearing of motion to continue (Coffin 61 How 105). Order modified by appellate division-Under CCP 1347 (Marty 66 AD 527, 73 NYS 369). Source CCP 8 627, amended-Revisers' Note The words "by affidavit" are eliminated to afford an opportunity for the adoption of a rule permitting other written evidence. See general section on proof in connection with the three remedies of arrest, injunction and attachment. The words "as a matter of course" are inserted to insure a construction that will authorize the court to permit new proof by plaintiff, even where the application to vacate is founded only on the original papers. See general section on new proof. Star (*) means read Not into note heading. Compared with-CCP §§ 606, 609, power of county judge (Morris 7 NYS 943). CCP § 609, necessity of notice (Babcock 23 Hun 391). CCP $8 682, 683, vacation of writ of attachment (Steuben Bank 75 NY 184). Applicable to Motions to continue, new affidavits (Cagney 34 Hun 549). Grounds for vacating-Adequate remedy at law on contract of employment (Averbach 161 NYS 396). Denial of only ground for injunction denied in answer (Gould 18 How 158; See Steinberger 42 How 52), of all equities of bill Kuntz 8 NYS 505) and plaintiff's case overborne by defendant's proofs (CentralRCo 49 How 233). *Desire to acquire property in legal manner where there has been full opportunity given before judgment rendered (Eno 56 Supr 313, 8 NYS 197). Doubt ful case for final relief and only ground for injunction denied (Steinberger 42 How 52). Irreparable damage wanting, erection of poles opposite plaintiff's property (Tracy 54 Hun 550, 7 NYS 892). Notice not given of application to restrain corporation and directors from carying on business (Middleton 43 How 144). Public health injured, not necessary to one party, and prejudicial to other, injunction against bids for cleaning streets (McCaffrey 10 How 475). Subsequent discovery of unlawful use of premises for pool-room, injunction against trespass by police (Devlin 116 AD 224, 101 NYS 546). Orders concerning particular acts or proceedings vacated-Dispossession, summary proceedings for (Smith 174 NYS 747). *Judgment destructive to property and injurious to plaintiff's stockholders, collection and enforcement (Storer 2 Bosw 661). Tax collection for payment of railroad bond (Young 75 NY 525). Motion to vacate timely-Before answer (Middletown 43 How 144, 12 AbNS 276). Parties entitled to move for vacation-Person whom money enjoined from payment is payable (Landers 24 Hun 648). Proof sufficient-*General denial of fraud in assignment (Litchfield 6 Barb 187). Orders dissolved-*Defeating plaintiff's remedy without trial (Young 129 NY 57). 899. When prior motion not to prejudice subsequent application. The granting or denial of an application, made as prescribed in the last section, founded only upon the papers upon which the injunction order was granted, does not prejudice a subsequent application, seasonably made, founded upon proof on the part of the defendant. The granting or denial of either application does not prejudice a subsequent application, seasonably made, founded upon the failure of a complaint, which had not been made at the time of the former application, to set forth a cause of action sufficient to entitle the plaintiff to the injunction order, upon one or more grounds recited therein. Source CCP 628, unchanged except to elim- | inate the words "by affidavit;" the reason for that change is the same as for similar change in the preceding section, explained in the note thereto Revisers' Note. Star (*) means read Not into note heading. application under chancery rule and CCP § 608 (Stull 25 Hun 1). CCP 8 683, vacation of attachment (Hawkins 44 AD 395, 60 NYS 1108). Order upon affidavit alone-Without complaint (Roosevelt 51 Supr 227). Subsequent application granted-*No leave obtained, ample security (Lawrence 172 NYS 146). § 900. New undertaking. Upon the hearing of an application, upon notice, to vacate or modify an injunction order, the court or judge may require a new undertaking, in the same or in a different sum, to be given by the plaintiff, with the like sureties and to |