sion be by oversight or accident, the plaintiff must pay the defendant costs of a motion to have the injunction vacated on the ground that the undertaking has not been filed (O'Donnell v. McMurn, 3 Abb. 391; Leffingwell v. Chave, 5 Bosw. 704). No provision for a reference need be contained in the undertaking (Higgins v. Allen, 6 How. 30). See Rule 4.

a. Where a corporation having authority to sue and be sued commences an action, and its president, for the purposes of an injunction, executes an undertaking prescribed by this section, in his official character, not professing to act as agent for the corporation, the undertaking will be regarded as the act of the corporation, and will bind it and not the officer (Epis. Ch. of St. Peter v. Varian, 28 Barb. 644).

b. The undertaking is for the benefit of all the defendants enjoined, whether served or not (Cumberland Coal and Iron Co. v. Hoffman Steam Coal Co. 39 Barb. 16).

c. If the sureties in the undertaking become insolvent, it is in the discretion of the court to order other sureties to be substituted (Willett v. Stringer, 15 How. 310).

d. Where the security given on the issuing of an injunction is inadequate, it is ground for vacating the injunction, unless the security is increased (Ryckman v. Coleman, 21 How. 404).

6. A defect in the undertaking is not ground for vacating the injunction (Williams v. Hall, 1 Bland, 194).

f. Damages.-Where the plaintiff during the progress of the cause serves a notice upon the defendant, waiving the injunction, the defendant is not then entitled to an order of reference to ascertain his damages, because the court must "finally decide that the plaintiff was not entitled thereto." Until this point is reached in the progress of the action, the application for reference to ascertain damages is premature (Shearman v. N. Y. Central Mills, 11 How. 269). The order may be made after final judgment in the action (Metho. Churches of N. Y. v. Barker, 18 N. Y. 463). But not until judgment entered (Weeks v. Southwick, 12 How. 170). Where the plaintiff served a notice that he discontinued the action, and offered to pay the defendant's costs. The costs were adjusted by consent and paid. Afterward the defendant moved on the notice of discontinuance, the injunction order and the proceedings in the action, for an order that the action be discontinued and the injunction vacated, the court made an order declaring the action discontinued, and said that by the discontinuance the injunction would cease to operate (Hope v. Acker, 7 Abb. 308; see Dunkin v. Lawrence, 1 Barb. 447; Hoyt v. Carter, 7 How. 140; and the defendant be entitled to a reference to ascertain his damages (Carpenter v. Wright, 4 Bosw. 655). The reference may be ordered, although not provided for in the undertaking (Higgins v. Allen, 6 How. 30). It was formerly otherwise (Garcie v. Sheldon, 3 Barb. 232).

g. In Coates v. Coates (1 Duer, 664), the injunction was dissolved, on motion founded upon the answer and affidavits, and the action discontinued. On reference to ascertain defendant's damages, the referee allowed counsel fees paid by the defendant in procuring the dissolution of the injunction. The court held the allowance proper (see 4 Edw. Ch. R. 292; 4 Paige, 440; 2 id. 116; Fitzpatrick v. Flagg, 12 Abb. 189); and further as to the items of damage allowed, see Wilde v. Joel, 15 How. 320; Bennett v. Brown, 20 N. Y. 99). Semble, a counsel fee in the cause may be allowed (Corcoran v. Judson, 24 N. Y. 106; see contra, Strong v. De Forest, 15 Abb. 427). But costs of an unsuccessful motion to dissolve the injunction are not allowable (Childs v. Lyons, 3 Rob. 704). Counsel fees in the suit are not allowable, but costs as adjusted are allowed (Taacks v. Schmidt, 18 Abb. 308). In that case the costs of two actions were allowed (see report, and see 30 N. Y. 166). Upon a reference as to damages, the fact of damage and the amount must be established by satisfactory proof. If the referee finds no damages have been sustained, his report will not be disturbed (Dwight v. North. Ind. R. R. Co. 54 Barb. 271).

a. Want of jurisdiction in the court over the subject-matter of the action does not deprive the defendant of the right to damages on the undertaking given on the issuing of the injunction in the action (Cumberland Coal Co. v. Hoffman Steam Coal Co. 15 Abb. 78; 39 Barb. 16). A defendant who obeys an injunction, although never served therewith, is entitled to recover the damages he sustained by such obedience (id.)

b. The sureties upon the undertaking given upon the issuance of an injunction cannot be held liable for damages resulting from the continuance of the injunction pending an appeal from an order vacating it (Town of Guilford V. Cornell, 4 Abb. 220).

c. Where a referee reports the facts and not the damages which the defendants have sustained by reason of an injunction, the report will not be confirmed (Taaks v. Schmidt,, 19 How. 413).

d. It is in the discretion of the court ordering the reference, to direct that the sureties have notice, or to set aside the report upon their application (Metho. Churches of N. Y. v. Barker, 18 N. Y. 463).

e. Semble, the court cannot direct a judgment to be entered against the sureties for the amount of defendant's damages, an action must be brought on the undertaking (Fitzpatrick v. Flagg, 12 Abb. 189; Patterson v. Bloomer, 37 How. 450; see, however, Willet v. Scovil, 4 Abb. 405).

f. The report of the referee must be confirmed by the court before any action can be taken on it (Griffin v. Slate, 5 How. 205). Form of order confirming report, see Strong v. De Forest, 15 Abb. 427; Willett v. Scovil, 4 Abb. 405).

g. Action on undertaking.-It seems that the undertaking may be prosecuted without leave of the court (N. Y. Cent. Ins. Co. v. Safford, 10 How. 344; Higgins v. Allen, 6 How. 30). If there has been a reference to compute the damages, the report of the referee must be confirmed before a motion for leave to sue on the undertaking will be entertained (Griffin v. Slate, 5 How. 205; and see Wilde v. Joel, 15 How. 320).

h. In an action on the undertaking, the judgment of dissolution is conclusive, and the only question is the amount of damages (Gelston v. Whitesides, 3 Cal. R. 309; Metho. Churches of N. Y. v. Barker, 18 N. Y. 463).

i. Attachment for damages. Where the plaintiff has not signed the undertaking, on his failing in the action, payment of the damages of the defendant, by reason of the injunction, cannot be enforced against the plaintiff, otherwise than by obtaining an order that he pay such damages; on his failing to comply with the order payment may be enforced by attachment (Patterson v. Bloomer, 6 Abb. N. S. 447; 7 id. 376; 37 How. 450; 38 id. 280).

§ 223. (Am'd 1849.) Order to show cause. time.

Restraint in mean

If the court or judge deem it proper that the defendant, or any of several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the defendant may, in the mean time, be restrained.

j. Security. Upon an order and temporary restraint under this section, security may be required as upon the allowance of an injunction under section 222 (Methodist Churches of. Ñ Y. v. Barker, 18 N. Y. 463).

k. Showing cause.-On motion to show cause why an injunction should not issue, the defend ant may read in opposition to the motion the

affidavits of third persons, although he has put in his answer denying the whole merits of the complaint. The answer in such case is only used as an affidavit (Florence v. Bates, 2 Code R. 110). The court will, however, permit the plaintiff to put in affidavits in reply to such new matter (ib.) Where a temporary injunction order had been granted ex parte, and notice given to the defendant to show cause why the temporary injunction should not be made permanent, the defendant, on the return of the order, showed cause by his answer, duly verified, and also by affidavits of several persons in support of the answer. Plaintiff's counsel objected to any affidavits being read in support of the answer. The objection was overruled (b.) On the hearing of an order to show cause why a preliminary injunction should not be continued, the plaintiff was allowed to support his complaint by additional affidavits, and explain affidavits read by defendant denying the facts in the papers, upon which the order to show cause was granted,-held that this was an exercise of discretion which could not be reviewed at general term (Childs v. Fox, 2 Rob. 650; 18 Abb. 112).

§ 224. (Am'd 1849.) Security upon injunction to suspend busi ness of corporation.

An injunction to suspend the general and ordinary business of a corporation shall not be granted except by the court or a judge thereof. Nor shall it be granted without due notice of the application therefor, to the proper officers of the corporation, except where the people of this State are a party to the proceeding, and except in proceedings to enforce the liability of stockholders, in corporations and associations for banking purposes, after the first day of January, one thousand eight hundred and fifty, as such proceedings are or shall be provided by law, unless the plaintiff shall give a written undertaking, executed by two sufficient sureties, to be approved by the court or judge, to the effect that the plaintiff will pay all damages not exceeding the sum to be mentioned in the undertaking, which such corporation may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascer tained by a reference or otherwise, as the court shall direct.

See note to section 222.

§ 225. Motion to vacate or modify injunction.

If the injunction be granted by a judge of the court, or by a county judge, without notice, the defendant, at any time before the trial, may apply upon notice, to a judge of the court in which the action is brought, to vacate or modify the same. The application may be made upon the complaint and the affidavits on which the injunction was granted, or upon affidavits on the part of the defendant, with or without the answer.

a. Vacating injunction ex parte.-A supreme court judge or a county judge may vacate or modify ex parte an injunction order made by himself, but it is a power which should be exercised with caution (Peck v. Yorks, 41 Barb. 547; Bruce v. Delaware Canal Co. 8 How. 440; Nat. Gaslight Co. v. O'Brien, 38 How. 271). The provision in section 225, that the application may be made to a judge, is permissive merely, and does not abridge the general jurisdiction of the court. A motion to dissolve an injunction may be made directly to the court (Woodruff v. Fisher, 17 Barb. 230; Ramsay v. Erie R. R Co. 38 How. 193; and see Peck v. Yorks, 24 How. 363).

b. Motion to vacate.-Upon a motion to dissolve an injunction order, granted during the pendency of an action, under the last clause of section 219, the only question to be considered is that of fraudulent intent. Affidavits denying the debt sworn to by the plaintiff cannot properly be received. The effect of the temporary injunction that can alone be granted in such a case, is not to restrain any disposition whatever of the defendant's property, but only such a removal or disposition with an intent to defraud his creditors (Brewster v. Hodges, 1 Duer, 609).

c. On a motion to continue or to dissolve an injunction the order should be vacated, if upon all the evidence disclosed, the court would not have granted it in the first instance (Moser v. Polhamus, 4 Abb. N. S. 442). In cases of doubt the court will vacate the order (Secor v. Weed, 7 Rob. 67), Where a temporary injunction has been granted on notice before answer, it does not preclude a motion to vacate after the answer is put in (Hazard v. Hudson River Bridge Co. 27 How. 296). Where the verified complaint was before the judge at the time the order was granted, it may be referred to on motion to vacate the order (Turner v. Thompson, 2 Abb. 444).

d. On motion to vacate an injunction order granted without notice, founded on notice and upon the complaint, the affidavit upon which the injunction was granted, copy injunction order, copy affidavit of the plaintiff, and copies of the pleadings, the moving party is not obliged to prove the existence of a suit and an injunction, proof of service of notice of motion is all that is required (Newbury v. Newbury, 6 How. 182). On he motion to vacate, a verified answer may be read as an affidavit (Krom v. Hogan, 4 How. 225; Schoonmaker v. Ref. Dutch Church, 5 id. 216; Minor v. Terry, 6 id. 210). The motion may be made and opposed upon affidavits of any number of witnesses; and it is a matter of discretion, upon balancing the evidence adduced, to dissolve it or not (Minor v. Terry, 6 How. 211; Crocker v. Baker, 3 Abb. 183; Malcomb v. Miller, 6 How. 456). The burden of proof is on the party having the affirmative (Shearman v. Hart, 14 Abb. 358). The moving party may introduce affidavits to contradict new matter introduced by his opponent, but the moving party may not introduce new matter in avoidance of that set up by his opponent (Shearman v. Hart, 14 Abb. 358; Childs v. Fox, 2 Rob. 650; 18 Abb. 112. See § 226).

e. Must all defendants answer before moving to dissolve injunction on answer? (Mallett v. Weybossett B'k, 1 Barb. 217.)

f. Verified answer denying equities of complaint.-It has been held that a preliminary injunction cannot be sustained when all the equities of the complaint are denied by the answer (Finnegan v. Lee, 18 How. 186; Blatchford v. N. Haven R. R. Co. 5 Abb. 276; see Durant v. Ernstein, 5 Rob. 424). Or where the only ground on which the injunction can be sustained is denied in the answer (Gould v. Jacobsohn, 18 How. 158). According to the practice prior to the code, an injunction would not be dissolved on the coming in of the answer, unless the defendants positively denied all the equity of the bill. A denial on information and belief was not sufficient (Ward v. Van Bokkelin, 1 Paige, 100; Apthorpe v. Comstock, Hopk. 148; Wakeman v. Gillespy, 5 Paige, 112; Att'y Gen'l v. Cohoes Co. 6 Paige, 134). Where the answer did not deny the facts charged in the bill positively and fully, although the denial was as full as could be given by the party under the circumstances, the injunction would not be dissolved (Roberts v. Anderson, 2

Johns. Ch. Rep. 204). And even when all the equity of the bill was denied by the answer, it was not a matter of course to dissolve the injunction, as the granting and continuing an injunction always rested in the sound discretion of the court, to be governed by the nature of the case (ib.; Moore v. Hylton, Dev. Equity Rep. 429; Bank of Monroe v. Schermerhorn, 1 Clarke Ch. R. 303). The statement of the defendant had to be at least credible. Any evasion in not responding to the charges in the bill, or an extreme improbability in the statement of the defendant, would induce the court to retain the injunction (Moore v. Hylton, supra; Williams v. Hall, 1 Bland, 195; Storer v. Coe, 2 Bosw. 661; Secor v. Weed, 7 Rob. 67). So, if the defendant's answer was contradictory (Tong v. Oliver, 1 Bland, 199; see Litchfield v Pelton, 6 Barb. 188). And if the equity of the bill was not charged to be in the knowledge of the defendant, and the defendant merely denied all knowledge and belief of the facts alleged therein, the injunction would not be dissolved on the bill and answer alone (Rogers v. Rogers, 1 Paige, 426). So, if the court could see in the facts disclosed in the answer, good reason for retaining the injunction, it would be retained, notwithstanding a full denial of the equity of the bill (Bank of Monroe v. Schermerhorn, 1 Clarke Ch. R. 303; see Dubois v. Budlong, 15 Abb. 445; 10 Bosw. 700; Clark v. Law, 22 How. 426).

a. It was a general rule, however, that if the facts on which the complainant's equity rested were positively denied the injunction must be dissolved (Gibson v. Tilton, 1 Bland, 355; see Falconer v. Elias, 3 Sand. 731; Perkins v. Warren, 6 How. 349; see Schermerhorn v. Merrill, 1 Barb. 511). The answer was sufficient if it disapproved the facts in the bill (M'Farland v. McDowell, 1 Car. Law Repos. 110). It needed not to invalidate by full proof the facts in the bill. The defendant needed only to show that the evidence of the complaint was entitled to no credit (North's Ex'rs v. Perrow, 4 Rand, 1).

b. An injunction against a corporation could not be dissolved on bill and answer (Fulton Bank v. N. Y. and Sharon Canal Co. 1 Paige, 311).

c. A defendant might answer an injunction bill, on oath, for the purpose of moving thereon for a dissolution of the injunction, although an oath was waived or was not necessary. But such answer had no other or greater force as evidence than the bill (Manchester v. Day, 6 Paige, 295; Dougrey v. Topping, 4 id. 94).

d. Party in contempt may move to vacate.-"It is no answer to a motion to dissolve an injunction, to show that the defendant has violated it" (Smith v. Reno, 6 How. 124; Smith v. Austin, 1 Code Rep. N. S. 137; Field v. Chapman, 13 Abb. 320; Field v. Hunt, 22 How. 330; Gurnee v. Odell, 13 Abb. 264; and see 4 How. 225; 1 Clarke Ch. R. 28).

e. Vacation of injunction for nonprosecution.—A want of due diligence in prosecuting the action, was in the former practice a cause for dissolving the injunction (De Peyster v. Graves, 2 Johns. Ch. R. 204; Higgins v. Woodward, Hopk. 342; Seebor v. Hess, 5 Paige, 85). But only as to the defendants served with process; for a neglect to serve the summons and injunction order on some of the defendants, was not a ground for dissolving the injunction as to those served (5 Paige, 85). And omitting to serve some defendants gave no right to those served to move to vacate the injunction for that cause (id) The court would not vacate the injunction for neglect of the plaintiff to prosecute the action where the defendant might himself proceed (Schermerhorn v. Merrill, 1 Barb. 511).

f. Appeal. From an order to show cause, granted ex parte and granting a restraint in the mean time, no appeal lies to the general term, until a hearing has been had on the order to show cause, or on a motion to vacate or modify such order (Schell v. Erie R. R. Co. 51 Barb. 273).

g. A motion to vacate an injunction "and for other and further relief," was denied at special term, and on an appeal the general term ordered an additional defendant to be joined in the action, held regular (Martin v. Kanouse, 2 Abb. 390). See note to section 226.