ARTICLE SECOND. Security. SEC. 611. Security, on staying proceedings in an action, before trial. 612. Id.; after trial, and before judgment. 613. Id.; after judgment. 614. Money deposited may be paid over. 615. Undertaking to be cancelled thereupon. 616. Security, on staying proceedings after verdict, in ejectment or dower617. Id.; damages to include waste. 618. Deposit may be dispensed with. 619. Undertaking and deposit; when dispensed with. 620. Security in other cases. 621. Special cases excepted. 622. When undertaking deemed forfeited. [Repealed.] 624. Damages sustained by a third person. 625. Action on the undertaking. § 611. Security, on staying proceedings in an action, before trial. An injunction order shall not be granted, to stay the trial of an action, in which the complaint demands judgment for a sum of money only, after issue has been joined therein, unless the party applying therefor gives an undertaking to the party enjoined, with sufficient sureties, to the effect, that he will pay to the party enjoined, or his representative, all damages and costs, 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. From 2 R. S. 188, Part 3, ch. 1. tit. 2, § 139. (2 Edm. 196.) § 612. Id.; 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 of 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 for the payment thereof, with interest, is given, as prescribed in this article. From Id., § 140. § 613. Id.; 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 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. From Id., § 141. Am'd by ch. 416 of 1877. § 614. Money deposited may be paid over. 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. From Id., § 142. (2 Edm. 196.) § 615. Undertaking to be cancelled thereupon. 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 cancelling the undertaking given by the successful party; making perpetual the injunction staying collection of the judgment; and requiring the judgment to be discharged of record. From Id., § 143 § 616. Security on staying proceedings after verdict, in ejectment or dower. An injunction order shall not be granted, to stay proceedings in an action of ejectment, or for dower, after verdict, report or decision, unless the party applying therefor gives an undertaking, with sufficient sureties, to 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. From Id., § 144. § 617. Id.; damages 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 waste committed upon the property, after the granting of the injunction. From Id., § 145. See & 623. § 618. Deposit may be dispensed with. 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. From Id., 146. § 619. Undertaking and deposit; when dispensed with. The foregoing sections of this article do not apply to a case, where an injunction order is applied for, to stay proceedings in another action, on the ground that a judgment, verdict, report, or decision therein. was obtained by actual fraud. In that case, the court or judge granting the injunction order may dispense with the deposit of money, or the execution of an undertaking, except as prescribed in the next section. From Id., 147. (2 Edm. 196.) § 620. Security in other cases. Where special provision is not otherwise made by law for the security to be given upon an injunction order, the party applying therefor must give an undertaking, executed by him or by one or more sureties, as the court or judge directs, 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. From Co. Proc. § 222. Am'd by ch. 416 of 1877. § 621. Special cases excepted. The foregoing provisions of this article do not affect any special statutory provision, whereby security upon granting an injunction order may be dispensed with, in a particular case, or the security to be given in a particular case is otherwise regulated. See § 1990. § 622. When undertaking deemed forfeited. Repealed by ch. 416 of 1877. § 623. 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 may, in its discretion, direct that the sureties have notice of the hearing, or of an appeal, and may prescribe the time and manner of giving them notice. From Co. Proc. §§ 222 and 224; and 2 R. S. 190, Part 3, ch. 1, tit. 2, § 145. Am'd by ch. 416 of 1877. See § 1809. § 624. 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. § 625. 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, executed pursuant to the provisions of this title, may bring an action thereon, without further leave of the court. ARTICLE THIRD. Vacating or modifying an Injunction Order. SEC. 626. Application to vacate or modify, without notice. 627. Id.; upon notice. 628. When prior motion not to prejudice subsequent application. 630. Verified answer to have the effect only of an affidavit. 631. When merits of action may be litigated. [Repealed.] 632. When merits not to be litigated. [Repealed.] 633. Extrinsic questions of fact to be determined. [Repealed.] 634. Proof upon questions of fact. [Repealed.] § 626. 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. Am'd by ch. 946 of 1895. § 627. Id.; 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, by affidavit, on the part of the defendant; or both. Where it is founded upon proof on the part of the defendant, it may be opposed by new proof by affidavit, on the part of the plaintiff, tending to sustain the injunction. From Co. Proc. § 225 and § 226. Am'd by ch. 416 of 1877, and ch. 542 of 1879. See 630. § 628. When prior motion not to prejudice suosequent 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, by affidavit, on the part of the defendant. And 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. § 629. New undertaking may be required. 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 the like effect, as upon granting an original order. The persons executing the new undertaking become liable thereon, as if they had executed it upon the granting of the original order. The persons who executed the original undertaking remain liable thereon, until the new undertaking is given and approved, and no longer. Upon such hearing the court or judge may, where the alleged wrong or injury is not irreparable and is capable of being adequately compensated for in money, vacate the injunction order upon the defendant's executing an undertaking in such form and amount and with such sureties as the court or judge shall direct, conditioned to indemnify the plaintiff against any loss sustained by reason of vacating such injunction order. Am'd by ch. 404 of 1883 and ch. 401 of 1884. § 630. Verified answer to have the effect only of an affidavit. Upon the hearing of a contested application for an injunction order, or to vacate or modify such an order, a verified answer has the effect only of an affidavit. § 631. When merits of action may be litigated. Repealed by ch. 416 of 1877. § 632. When merits not to be litigated. Repealed by ch. 416 of 1877. § 633. Extrinsic questions of fact to be determined. Repealed by ch. 416 of 1877. § 634. Proof upon questions of fact. Repealed by ch. 416 of 1877. |