Citation Numbers: 132 Misc. 887
Judges: Rodenbeck
Filed Date: 8/11/1928
Status: Precedential
Modified Date: 1/12/2023
This is an application to confirm the report of a referee appointed to assess the damages arising from a temporary injunction which was vacated. The injunction was served at noon Saturday, July 25, 1925, and the decision vacating it was received August 10, 1925, a lapse of twelve days, excluding Sundays and Saturday half holidays. It restrained the defendants from erecting and maintaining a boat works on property claimed to be restricted by covenants in plaintiff’s deed, prohibiting the use of the property for commercial purposes. These covenants were held good as against the defendant Summerville Terraces, Inc., the owner of the tract, but not good against the defendant the Rochester Boat Works, Inc., although the deed of the property was recorded.
The temporary injunction, granted when the action was brought, was not upheld on application to continue it during the pendency of the action, and during the interval between the service of the injunction and the decision refusing continuance, the defendants claim to have suffered damages.
These damages are limited, as to injury to the business of the defendant the Rochester Boat Works, Inc., to such as necessarily followed the granting and service of the injunction. The company was about to remove its works to the new site, which plaintiff claimed was restricted to residential purposes, when the injunction was served, and it ceased all operations in that respect until August 10, 1925, when the decision on the application to continue the injunction was received. It now claims a proportionate share, for this period, of its overhead expenses. It is evident that there
The company also claims sixty dollars for rent during the suspension, but it is not liable for this rent, which it has not paid, having been restrained from using the property by the plaintiff, its landlord, and this item should not be allowed.
It also claims $306.90 for the salary of a foreman and superintendent who could and should have been laid off, or continued at the company’s expense, and nothing should be allowed under this head.
That leaves no damages recoverable by the boat works for interference with its business traceable to the injunction obtained by the plaintiff. The company by reason of the injunction was merely delayed twelve days, at a time when it was not doing any work affected by the injunction, and had no work in immediate contemplation except moving its plant, and no contracts for work upon which there was any delay, with employees only who could have been laid off during the continuance of the injunction.
The only expense to which the defendants were put was that for attorneys in getting rid of the injunction and securing an assessment of damages. The attorneys have testified to the time necessarily employed in this connection, but the testimony as to time, while not open to contradiction, is not to be used, in estimating damages, by the mathematical process of multiplying the time consumed by the reasonable value of such services per day. The rule of damages is the reasonable value of the services required,
The counsel for the defendant boat works is entitled to the sum of $350 with $8.10 for disbursements, and the counsel for the defendant Summerville Terraces to $200. This makes an allowance of $550 for a motion to oppose the continuance of an injunction, in a simple case, by two defendants, with separate counsel, where the issues were substantially the same, which is quite sufficient. The defendant Rochester Boat Works is not entitled to any damages for interference with its business, not having suffered any actual damages. The costs and disbursements of the reference are allowed. As thus modified, the referee’s report is confirmed.