#### NEW YORK CITY SUBURBAN WATER CO. et al. v. BISSELL et al.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Injunction—Final Decision—Liability on Bond.

Pending an appeal from an order of the general term reversing an order granting a temporary injunction, the parties stipulated that, if the order of the general term should be affirmed on its merits, the complaint should be dismissed. The court of appeals affirmed the order, and judgment was entered according to the stipulation. *Held*a final decision that plaintiffs were not entitled to the injunction, so as to render them liable on the injunction bond.

Appeal from special term, Westchester county.

Action by the New York City Suburban Water Company and others against Joseph B. Bissell and Joseph M. Low on an injunction bond. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Albertus Perry, for appellants.

John B. Gleason, for respondents.

BROWN, P. J.

Judgment was recovered against the defendants upon an undertaking given as security upon the issuing of an injunction in an action in which Duncan F. Cameron and another were plaintiffs, and the plaintiffs herein were defendants. The only question presented upon this appeal is whether there has been a final decision that the plaintiffs in that action were not. entitled thereto. The general term reversed the order granting the injunction, and'the order of the general term was affirmed by the court of appeals. Cameron v. Water Co., 133 N. Y. 336, 31 N. E. 104. Be*939fore the appeal from the order was argued in the court of appeals, and after the case had been noticed for trial, the parties entered into a stipulation adjourning the trial until after the decision of the court of appeals, and providing that, if the order of the general term was affirmed upon its merits, the complaint should be dismissed, and the judgment recite that plaintiffs were not entitled to the injunction. Accordingly, upon presentation to this court of the remittitur from the .court of appeals, a judgment was entered in accordance with the stipulation and a reference ordered to ascertain the damages to secure the payment of which the undertaking was given. The referee having made his report, and the same having been confirmed, this action was commenced. The judgment entered pursuant to the stipulation is as binding upon the defendants as though it had been recovered upon a trial; and, in the absence of evidence of fraud or collusion, it is conclusive upon them. Conner v. Reeves, 103 N. Y. 527, 9 N. E. 439; Steinbock v. Evans, 122 N. Y. 551, 25 N. E. 929. Orders vacating an injunction and discontinuing an action, whether entered voluntarily by the plaintiff, or after leave granted by the court upon his application, are, in effect, a determination that plaintiff was not entitled to the injunction granted. Steamship Co. v. Toel, 85 N. Y. 646; Amberg v. Kramer (Sup.) 8 N. Y. Supp. 821. The stipulation under consideration here was, in effect, a voluntary, conditional discontinuance of the action by the plaintiff. The right to the temporary injunction involved the merits of the case, and that was recognized by the parties. Hence, the agreement that, if the order of the general term was affirmed on its merits, the complaint should be dismissed upon the merits. It would have been manifestly a waste of time to have tried the action after the decision of the court of appeals.

The appellants have cited many cases which they claim decide that, where an action has been discontinued by agreement, there is no liability upon the undertaking. None of them are applicable to the facts here presented, but all are distinguished from the cases I have cited by some fact existing which takes them out of the rule governing a voluntary discontinuance by the plaintiff. The stipulation here was not a settlement of the action. It contemplated its continuance if the order of the general term should be reversed. But it recognized that a question of law, arising upon the construction of the statutes of the state, lay at the foundation of plaintiffs’ case, and if that should be decided adversely to their contention the right to a judgment was destroyed, and it would be useless to try the action; and so it was agreed that, if the decision upon that legal question was against the plaintiffs’ claim, the complaint should be dismissed. The judgment entered upon that stipulation has determined that the plaintiffs were not entitled to the injunction. The judgment appealed from is affirmed, with costs. All concur.