#### Benjamin De Forest *et al.*plaintiffs and respondents, *vs.*Charles W. Baker, (who was impleaded with Alexander Strong,) defendant and appellant.

1. In an action upon an undertaking which was given upon obtaining an injunction order, and conditioned to pay all damages sustained thereby, “ in case the court should finally decide that the plaintiff (in the injunction suit) was not entitled thereto,” a denial in an answer, that the court by which such order was issued had decided, in the action in which it was made, that the plaintiff was not entitled thereto, and that the present plaintiff had been damnified, and that the defendant Was indebted to him, raises a material issue, where the complaint only sets out a recovery of judgment in such injunction suit by the plaintiff without stating the ground of such judgment, or a decision, in terms, that the plaintiff was not entitled to such injunction.

2. Nor can it be established to be sham, by an affidavit showing that the complaint in the injunction suit was dismissed, without disclosing on what ground.

3. When an answer is struck out as sham and irrelevant, the proper method of obtaining judgment is to proceed as if no answer had been put in. If the summons be for relief, the defendant is entitled to the usual notice of application for judgment, after the answer has been stricken out.

(Before Bosworth, Ch. J. and White and Monell, JJ.)

Heard November 7, 1863;

decided November 14, 1863.

*701This was an appeal by the defendant Baker, from an order striking out his answer in the action, and giving judgment.

The action was brought by Benjamin De Forest and Charles L. Bowan, against Alexander Strong and Charles W. Baker, to recover on an undertaking given by the defendant, upon the issuing of an injunction against the plaintiffs, in an action previously brought against the latter in the Supreme Court, by one Bobert Strong.

The complaint in the present action averred the commencement of the injunction suit, and the giving of the undertaking, which was in the usual form. The other allegations of the complaint, which were drawn in question, and those of the answer, are stated in the opinion of the court. The complaint demanded judgment for $570, the amount awarded as damages by a reference in the usual manner in the Supreme Court.

The plaintiffs moved to strike out this answer as sham and irrelevant, and for judgment. The motion was founded on the pleadings, and on an affidavit by Samuel Brown, their attorney, stating that the complaint in the injunction suit *11*was dismissed, and judgment thereupon entered in favor of the plaintiffs, against said Bobert Strong, as referred to in the complaint in this action.” It also set forth the proceedings upon the reference and the order confirming the award, and allowing the present plaintiffs to sue 'therefor. Among the papers produced, also, were papers in an appeal from such order in the Supreme Court, and an undertaking given thereon to secure a stay of proceedings on the order.

The motion from which the present appeal was taken was heard before Justice Mohcrief, at special term, who granted it, •July 1, 1863.

*M. J. Bacon,*for the defendant appellant.

I. The appeal (with undertaking) from the order of the Supreme Court, stopped all proceedings under that order. ((Me, § 342.)

II. The answer was a good and sufficient defense, and should not have been struck out as frivolous, because on its face it *702was not taken merely for delay ; (2 *Abb. Pr.*414*; 12 How. Pr.*543;) especially as it was accompanied with an affidavit of merits ; unless apparent that it was not interposed in good faith. (2 *Sandf.*680.)

*Samuel Brown,*for the plaintiffs, respondents.

The only question before the court, at special term, was the character of the answer interposed on behalf of the defendant Baker. There was no evidence before the court that an appeal had been taken from the order made in the Supreme Court, or that the proceedings in that court had been stayed by security or otherwise, or that, any stay had been applied for, or granted in this court. And the fact was otherwise.

I. The answer does not take issue upon any material allegation in the complaint.

The defendant, on the hearing of the motion, did not deny that the complaint in the original action had been dismissed, and that judgment had been rendered and entered for the defendant, as alleged in the complaint. Nor does the answer deny that by an order of the Supreme Court, made in pursuance of the terms of the undertaking, the damages of the plaintiff were assessed at $570.

II. The second allegation of the defendant’s answer is evasive and irrelevant, and false. The dismissal of the plaintiffs’ complaint, and the rendition and entry of judgment for the defendant as set forth in the complaint, was the final decision referred to in the undertaking, and was conclusive evidence on that point. *(Loomis*v. *Brown,*16 *Barb.*325, 330. *Weeks*v. *Southwich, 12 How.*170. *Mutual Safety Insurance Co.*v. *(Roberts,*4 *Sandf. Ch.*593. *Hoyt*v. *Carter,*7 *How.*140.)

The defendant subsequently submitting to a reference, was also evidence of the final determination of the original action.

III. The defendant’s denial that the plaintiffs had suffered any damage, was also false in fact, because the defendant admits that the damages were assessed by the court in a proceeding in which they appeared, had notice and litigated the question of damage.

IT. The extent of the defendant’s liability was fixed by the *703proceedings in the • Supreme Court, and in this action he would only be allowed to plead new defenses to his liability on the undertaking. *(Methodist Churches*v. Barker, 18 *N. Y. Rep.*465. *Wilde*v. *Joel,*15 *How.*327.)

Y. The defendant’s answer was sham and irrelevant, and the order should be affirmed with costs. *(Lee Bank*v. *Kitching,*7 *Bosw.*668. *Edgerton*v. *Smith,*3 *Duer,*614. *Kurtz*v. *McGuire,*5 *Duer,*660. *The People*v. *McCumber,*18 N. Y. Rep. 315.)

By the Court, Bosworth, Ch. J.

The undertaking is for the payment of all damages, if the court “shall finally decide that the said plaintiff (the plaintiff in the injunction suit,) was not entitled thereto,” (to the injunction.)

The complaint avers that judgment has been rendered in the injunction suit in favor of 'the defendants therein, and the judgment roll filed, &c. “whereby it appears that said Robert Strong (the plaintiff in the injunction suit,) was not entitled to said injunction.”

The answer alleges, *Second,*that the defendant “ denies that it has been decided that said Robert Strong in said complaint mentioned- was not entitled to the injunction in said action.”^ It was not in fact so decided, or if the judgment rendered does not import that in legal effect, then the defendants are not liable.

It is not stated in what manner, or on what grounds the judgment was rendered, nor is it stated that the court decided that Strong was not entitled to the injunction, unless such a statement is involved in the allegation; “ whereby it appears that said Robert Strong was not entitled to said injunction.”

If the judgment was rendered on a trial of the action on the merits of the case made by the complaint, or on a dismissal of the complaint for want of prosecution, then the injunction would be dissolved by the judgment rendered, and the judgment would be a final determination of .the rights of the parties in that action., *(Code of Pro.*§ 245. *Carpenter*v. *Wright,*4 *Bosw.*6.55.)

*704But judgment may have been given for the defendants in that suit, solely by reason of matters of defense arising out of the suit brought, and on grounds conceding that the injunction was rightly issued.

Whether the plaintiff means by the words “ whereby it appears that said Bobert Strong was not entitled to said injunction,” that such a result is manifested by the mere fact that judgment was given for the defendants, irrespective of the grounds of the judgment; or that the record discloses that the court so adjudged, it is not easy to determine. I think, however, that he does not mean to allege in the use of those words, that the court has, in terms, so decided. It is certainly not averred in terms, that the court did so decide. The answer, substituting “says” for “ denies,” would contain a direct and unequivocal averment that the court has not so decided. And this is broad enough to exclude the fact of a decision "to that effect, either in terms or legal effect.

This is not an irrelevant allegation, nor is it sham in the sense that it is shown to be untrue. Not being irrelevant, nor shown to be untrue, it can not be stricken out on motion.

The affidavit of Mr. Brown, the plaintiff’s attorney, states that the complaint in the injunction suit was dismissed ; but does not say whether it was for want of prosecution, or on what ground. ■

The defendant’s counsel insisted, on the argument, that it was dismissed for want of prosecution, and his view is, that a judgment for the defendants, on that ground, is not a final decision that the plaintiff was not entitled to the injunction,' within the meaning of the undertaking.

In that, I think, he is mistaken. (Code, § 245. 4 *Bosw.*655.) If his answer be stricken out as shain, he can not test the accuracy of his views. It is not sham, if his view of the law is correct, and the judgment proceeded on the grounds stated.

But inasmuch as the complaint does not show on what grounds the judgment was rendered ; and the answer avers in substance that it has not been decided that Strong was not entitled to the injunction; the latter averment presents an *705issue, on the decision of which, the question of the defendant’s liability depends. ■

And as the pleadings present this question, it can not be said that the allegation denying the defendant's indebtedness, or that the plaintiffs have sustained damages within the meaning of the undertaking, is false or irrelevant.

If it has not been finally decided in the injunction suit that Strong was not entitled to the injunction, within the meaning of the words, “ finally decided,” as used in the Code and the undertaking, then it follows that these plaintiffs have not in judgment of law sustained damages, by reason of the injunction, and the defendants are not indebted to them.

The order appealed from strikes out the answer as sham and irrelevant, and orders “judgment as demanded in the complaint.” When an answer is thus stricken out, the plaintiff proceeds to perfect judgment, precisely as if no answer had been put in.

The summons in this case is one for relief. The clerk can not enter judgment under section 246 of the Code, because there is no “ amount mentioned in the summons.”

As the plaintiffs must apply to the court for the relief demanded in the complaint, the defendants are entitled to eight days notice thereof. (Code, § 246, *subd.*2.) This notice can not be given until the action is in such a stage that it can truly be said that an answer is due, and there is no answer in the action.

I think this order should be reversed.

Ordered accordingly.