Holcomb v. . Rice

Upon a proceeding to ascertain the damages sustained by a party in consequence of an injunction restraining him in the exercise of some legal right, it is proper to allow, as a part of the damages, the expenses incurred upon the reference. (Aldrich v.Reynolds, 1 Barb. Ch. 613; Lawton v. Green, 64 N.Y. 326.) After complying with the terms of the undertaking by paying the costs of the foreclosure proceedings, the costs in the action and the deficiency upon the sale of the mortgaged premises, there still remained a margin in the amount of the undertaking, sufficient to cover the damages allowed by the court upon the confirmation of the referee's report.

The sureties could not include as a payment on account of their undertaking, the amount at which they bid in the premises upon the foreclosure sale. Their undertaking was to indemnify the defendant mortgagee upon the injunction obtained by the plaintiff, pending his action to *Page 601 restrain foreclosure proceedings and sale under the mortgage. If they purchased the premises to protect themselves, that fact in no wise affects the question of the damages assessable against them. The delay in taking the proceeding to assess the damages against the sureties did not affect the claim on the undertaking.

In the settlement between the mortgagee and the sureties after the foreclosure sale, the balance of the claim for damages was left open for future adjustment. The referee so found and there was evidence to support his finding. The other questions have been rightly disposed of and the order should be affirmed with costs. All concur.

Order affirmed. *Page 602 [EDITORS' NOTE: THIS PAGE IS BLANK.] *Page 603