#### Eugene F. Wilson, Respondent, *v.*Carolyn Wilson, Appellant.

First Department,

January 8, 1909.

Injunction — assessment of damages cause ¿thereby —final determination j as. to right to injunction prerequisite.

A party is not entitled toa reference to ascertain damages caused by an injunction until the court has finally decided -that the party obtaining the injunction had ho fight thereto, or unless something has occurred equivalent to such decision. . ■ -

Thus, where the court .on appeal has affirmed a. judgment dismissing a complaint seeking to recover personal property although it has also reversed that pait of the.judgment awarding defendant possession- on the ground that such relief was hot demanded in the answer, there is no such .-final determination in . the plaintiff's favor as entities him to a reference to assess damages caused by the granting of a temporary injunction restraining him: from, disposing of' the property until final judgment. Such judgment' in effect determined that the ■ plaintiff had-no title to the property, and the decision that the defendant was not entitled to an in junction is not final.

Appeal by the defendant', Carolyn Wilson, from an order .of the SupTeme Court, made at the Mew York Special Term and entered in tl!ie office of the clerk, of the county of Mew York on the 18th day ¡of August, 1908, granting the plaintiff’s motion for the appointmehlt of a referee to. ascertain damages caused by an injunction obtained by the defendant.

*David Gerber,*for the appellant.

*Frank C. Avery,*for the respondent.

Houghton, J.:

T|ie'plaintiff brought action against the defendant to have decreed - thatj - certain personal property,- consisting of household furniture' purchased by the defendant and for which she had taken a bill of sale *71in her own name, belonged to him on the ground that it was purchased with liis money by her as his agent. Plaintiff further asked that the defendant be restrained from incumbering, transferring or disposing of such property, and that she be required to execute a bill of sale of the sanie to himself. The defendant denied that the property belonged to the plaintiff or that she purchased it as plaintiff’s agent, and asserted that it belonged to herself, and that the plaintiff had taken possession of it during her temporary absence from the house in which it was installed. On the trial the court found in favor of defendant and' dismissed plaintiff’s complaint. In addition to dismissing the complaint, the court granted to defendant affirmative relief in the form of a decree for delivery of possession of the personal property by the plaintiff to the defendant, or in default thereof, that he pay its value, which was assessed at $3,000. On appeal to this court the judgment dismissing plaintiff’s-complaint was affirmed, but the affirmative relief granted to defendant was stricken out on the ground that her answer did not demand such relief. As so modified the judgment was affirmed. (126 App. Div. 941.)

During the progress of the action the defendant obtained a temporary injunction with an order to show cause why it should not be continued during the pendency of the action restraining plaintiff from selling or incumbering the property or in any manner disposing of it until the final j udgment therein. The defendant gave the undertaking prescribed by the Code oil'granting an injunction in the sum of $250, conditioned to pay such damages as the plaintiff might suffer, not exceeding that amount, “ if the court finally decides that the defendant was not entitled thereto.” On the return of the order to show cause the plaintiff appeared by counsel, and an order was made denying a further injunction arid setting aside the one which had been granted. After the decision of this court and the entry of judgment thereon, the plaintiff moved for the appointment of a referee to ascertain what damages he had sustained by reason of such in junction,-and from an order appointing such referee the defendant appeals.

We think there was no such final determination of the action in plaintiff’s favor as entitles him to assess any damages because of the injunction which the defendant obtained. The determination of. *72the trial court and of this court was that the plaintiff had no cause of action whatever and'that the property in controversy did in fact belong to the defendant. It was only by reason of the technical defect in her answer that the defendant was denied affirmative relief awarding her possession, or in case possession could not be had, a judgment for its value. There has been no final decision of the court that the defendant was not entitled to the injunction which slid obtained. Oil the contrary, the final détermination has been that the plaintiff had no title to the property and, in effect, that he was wrongfully interfering with property which belonged to the defendant. The final decision of the action is the test of'liability for damages suffered by reason of an injunction, and there is. no breach of the condition of the statutory undertaking given thereon unless the court finally decides that the party obtaining it was not entitled to it, or unless something occurs' equivalent to such a decision. *(Palmer*v. *Foley,*71 N. Y. 106; *Apollinaris Co.*v. *Venable,*136 id. 46; *Benedict*v. *Benedict,*76 id. 600.)

Had the plaintiff succeeded in his action he would have been entitled to the appointment of a referee to assess such damages as he suffered by reason of the injunction which the defendant obtained. Having failed, however, he can get no damages.

The order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.