Weisner v. 791 Park Avenue Corp. , 201 N.Y.S.2d 985 ( 1960 )

Order unanimously reversed on the law and on the facts and a new trial ordered, with $20 costs and disbursements to appellant to abide the event. In our opinion, appellant was entitled, pursuant to the provisions of section 894 of the Civil Practice Act, to an award in some amount for the damages sustained by it by reason of the injunction. In passing on this issue, however, consideration should be given to the nature of the restraint placed upon appellant as distinguished from the injunctive relief granted against the codefendant. While appellant’s counsel in his testimony stated that no recovery was being sought “for securing the dismissal of the complaint but merely for securing the dissolution of the injunction or the denial of the injunction motion ”, no attempt was made in the evidence presented to implement this statement. The restraint placed upon appellant was peripheral. Its main objective was not to prevent injunctive relief being granted but to secure a dismissal of the complaint and establish the legal principle subsequently enunciated by the Court of Appeals that owners of co-operative apartments have the right to “ decide for themselves with whom they wish to share their elevators, their common halls and facilities, their stockholders’ meetings, their management problems and responsibilities and their homes.” (6 N Y 2d 42C, 434.) Thus, upon the new trial Special and Trial Term will be required to separate .the services rendered by appellant’s counsel in resisting or seeking to vacate the injunction and the legal work done in establishing the legal principle that the owner of a co-operative apartment has the right to arbitrarily withhold its consent to a transfer of a proprietary lease. Counsel fees for the former are compensable under the undertaking but not for the latter. Concur • — Botein, P. J., Rabin, Yalente, McNally and Bastow, JJ.