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the amount finally realized was sufficient to pay the expenses and the debts due to them, still it was a loss to the construction company by diminishing to that amount the surplus it would otherwise have received from the sale.

Friend v. Mercantile Trust Co. 21 Week. Dig. 332.

Where the defendants are at liberty to deposit a guaranty fund held under an injunction wherever they see fit, and the only thing required of them by the injunction is that they should not distribute the fund among the in'ividual members of the association as their property, and it appears by their own showing that they had earned with this fund all that could be earned in the manner provided by the contract under which the fund was created, they are not entitled to recover the difference between legal interest and the amount of interest earned by the fund as damages sustained by them by reason of the injunction.

Phænix Bridge Co. v. Keystone Bridge Co., 10 App. Div. 176; 75 St. Rep. 1259; 41 Supp. 891; All’d 153 N. Y. 644.

Loss of rent and increased cost of labor and materials are properly al. lowed as items of damages caused by a delay in the completion of a building occasioned by the granting of a temporary injunction restraining the tearing down of an alleged party-wall.

Roberts v. White, 73 X. Y. 375.

Loss of rent by reason of the tenants becoming irresponsible, or abandon ing the premises pending an injunction, or by reason of the premises being unoccupied when they might have been rented, or rent collected by the plaintiff from the tenants pending the action except payments for repair: or improvements allowed by him to the tenants and deducted from the rentreceived by him, is recoverable as damages sustained by reason of an in junction restraining a landlord from prosecuting summary proceeding against his tenants.

McDonald v. James, 38 Super. 76.

Any loss of property or diminution of profits, occurring in consequence of the puttting of defendant's goods or effects in the hands of a receiver, ap pointed by the same order restraining defendant from interfering or disposing of his property, is a proper element of damages.

Hotchkiss v. Platt, 8 Hun, 46.

Damages sustained by reason of an injunction restraining defendant from disposing of the merchandise and goods of a corporation, which he purchased at a sale under judgments, which plaintiff alleged were intended to defraud him and asked to have set aside in an action against defendant, which was dismissed for want of prosecution, properly include rent paid for the factory while its use was enjoined, loss of wages paid, and profits lost on orders on hand when the injunction was served and received during its continuance, but not loss of profits on the goods that the factory had capacity to produce during the time the injunction was ių operation nor injury to the good will of the business.


Manufacturers' and Traders' Bank v. C. W. F. Dari Co. 67 Hun, 44; 50 St. Rep. 802; 21 Supp. 806; Aff'd 138 N. Y. 635; 51 St. Rep. 935.

Where defendant conveyed mill property with an oral reservation of the personal property in and about the mill, and he was enjoined from carrying away any of the structures, appurtenances or fixtures thereon by a person, not a party to the deed, who claimed title to the mill property, the value of the bulkhead, of the trunk or tube for conveying water from the bulkhead to the mill rendered useless in consequence of the injunction, and the depreciation in value of the machinery and appliances in the mill are properly allows as damages.

Church v. Barkman, 41 St. Rep. 868; 16 Supp. 624.

Losses sustained by reason of injuries to goods of a partnership through defendant's neglect to care for them and rent of building for storing them are not allowable as damages in consequence of an injunction, in an action to dissolve the partnership, restraining defendant from interfering with the goods, except to preserve them.

Boswell v. Ward, 17 Week. Dig. 390.

Where an injunction restrained a defendant from preventing the closing and opening of a swing bridge on a public highway, which necessitated the employment of a man to open and close the bridge, the wages of the bridge tender during the continuance of the injunction should be allowed as a part of defendant's damages.

Ten Eyck v. Sayer, 76 Hun, 37; 59 St. Rep. 627; 27 Supp. 588.

An allowance awarded by the court to the receiver, appointed by the same order continuing a temporary injunction, for the expense incurred for serr. ices rendered in the preservation and management of the property is not allowable as damages sustained by reason of the injunction, when the amount so paid is less than the defendant, who did not manage the property before the receivership, but employed another person to do it, would have paid for similar services if no receiver had been appointed.

Hotchkiss v. Platt, 8 Hun, 46.

Where in an action brought to perpetually enjoin the officers of a city who were about to issue bonds under the provisions of certain acts of the legislature, alleged to be unconstitutional, the plaintiff applied for an injunction pendente lite, and obtained an order to show cause, which restrained the defendants from proceeding further in the matter until the fur. ther order of the court, and prior to the commencement of the action and the issuing of the order, a bank had resolved to bid for part of such bonds at a premium of two and one-half per cent above the par value, and after the commencement of the action and the granting of the order had become known to the bank, it decided to make no bids for such bonds, and the highest bid received therefor was an average of three-sixteenths of one per cent premium above the par value of such bonds which were subsequenily sold at that price, the difference between the actual selling price of the bonds


N. Y. A. C.


and what would have been received therefor had the bank bid for the same cannot be recovered as damages suffered by reason of the injunction, as the conclusion of the bank not to bid at all should be ascribed to the uncertainty which the litigation suggested as to the validity of the bonds rather than to the issuing of the injunction.

Sweet v. Mowry, 71 Hun, 381; 55 St. Rep. 51; 25 Supp. 32.

Where the general term had held that the property of a railroad company could not be taken from the hands of a receiver until a board of directors was elected, and that a board could only be elected on the day fixed by the by-laws for an annual election, and on that day, pursuant to notice, a meeting of the stockholders was held at which almost the entire stock was represented, and immediately after the meeting was organized, an injunction, forbidding an election, was served, which could only be vacated by the judge who granted it, or by the general term sitting at a distant city, the amount paid for a special train, there being no regular train by which defendant's counsel could reach such city on the day of the election, in order to obtain a dissolution of the injunction, is allowable as part of the damages sustained by reason of the injunction, and defendants were justified in incurring this unusual expense, because, unless an election was held that day, it was perhaps certain that none could be held for a year, and, as very large interests were at stake, it was important that the injunction should be removed at once, and that they should be allowed to elect their directors and manage their own affairs.

Crounse v. Syracuse, Chenango & N. Y. R. R. Co. 32 Hun, 497.

The value of the use and occupation during the continuance of an injunction by a third party restraining a landlord from prosecuting summary proceeding against his tenants for the possession of the premises is not damages sustained by reason of the injunction.

McDonald v. James, 38 Super. 76.

Items of damage growing out of the suspension of work on the part of the defendants and their several contractors and subcontractors in getting out bark for the use of the defendant's tannery are properly included in the damages sustained by reason of the continuance of the injunction.

Lyon v. Hersey, 32 Hun, 253.

Where defendant, as plaintiff in an action against a nonresident firm attached a cargo of its hides, which plaintiff, claiming to own, obtained an injunction restraining defendant from interfering with, and took the hides and sold them, the amount of the judgments in the attachment action and the injunction action are properly damages sustained by reason of the injunction.

Taacks v. Schmidt, 18 Abb. Pr. 307.

The expenses incurred in foreclosing and preparing to sell, including auctioneer's fees and advertising, are properly allowed as damages sustained hy reason of a temporary injunction, restraining defendant from


selling personal property under a chattel mortgage, served upon defendant at the place of the sale a few minutes before the time when the sale was to have taken place.

Willett v. Scovil, 4 Abb. Pr. 405.

LESSER v. DRY DOCK, E. B. & B. R. CO. et al.

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[33 Misc. 388; 101 St. Rep. 587; 67 Supp. 587.)

(City Court of New York, General Term. December 13, 1900.)

Code Civ. Pro. § 791, subd. 5, providing that an action is entitled to

preference on the calendar in which an infant is the sole plaintiff, en-
titles an infant plaintiff to a preference as an absolute right, where
the claim is perfected by the service of a motion therefor with the
notice of trial, as required by section 793; and delay, after issue
joined, in placing the case on the calendar, cannot defeat the same.


a. Scope.
b. Statutes and court rules.
C. Application of statutes.
d. Right to preference.

1. When lost by laches.
2. Waiver.
3. How regained.

4. In representative capacity.
e. Practice.

1. What is sufficient notice of motion.
2. Where motion to be made.
3. Appeal.

a. Scope.

This note is a continuation of a note on the same subject in 4 Ann. Cas. 253, and covers all phases of the question contained in all the New York reports since the year 1897.

b. Statutes and court rules.

Since the writing of the previous note, besides the various amendients

City Court of N. Y., General Term.


Appeal from trial term.

Action by Grace Lesser, an infant, by Albert Lesser, her guardian ad litem, against the Dry Dock, East Broadway & Battery Railroad Company and another. From an order denying, on the ground of laches, a motion for a preference on the calendar, plaintiff appeals. Reversed.

Argued before McCarthy, SCHUCHMAN, and O'DWYER, JJ.

Louis J. Vorhaus, for appellant.

Henry A. Robinson and John T. Little, for respondents.


The plaintiff, having complied with the only


to section 791 of the Code of Civil Procedure, which contains the general provisions for the order of preference on the calendar of various actions, three new subdivisions have been added thereto as follows:

8 791, Code of Civil Procedure.

3a. In the court of appeals or the supreme court, an appeal taken by either party in an action or special proceeding from a judgment or order declaring a legislative enactment unconstitutional, is entitled on motion of the appellant, to a preference over any business irrespective of its place upon the calendar, except as to preferences provided for in sections seven hundred eighty-nine, seven hundred ninety, and the preceding subdivisions of this section.

Added by L. 1899, chap. 585, taking effect September 1, 1899.
11. In any court an action for libel or slander.
Added by chap. 136 of laws of 1898.

12. In the court of appeals all appeals from judgments of affirmance rendered by the appellate division of the supreme court in cases enumerated in subdivision two of section one hundred and ninety-one of this act, where the decision of the appellate division has been unanimous and a. appeal has been taken or allowed as in said subdivision of said section provided.

Added by L. 1899, chap. 355, taking effect September 1, 1899.

In addition to the court rules set forth in the previous note, two other rules are passed upon in the discussion of questions of preference arising in cases in this note, which provide as follows:

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