An examination of the authorities cited ©n the motion to strike out the last paragraph of the order, entered herein July 9, 1874, which directs the entry of judgment against Cogswell and Friedlander, the sureties on the undertaking given at the time the injunction was granted, has convinced me that the portion of the order referred to was erroneous, and that that portion of said order should be stricken out and the judgment entered thereon vacated.
The precise point involved here was presented in the court of common pleas, in the very recent case of Troxell agt. Haynes. Daly, C. J., delivering the opinion at special term, in that case, says: “ There was no authority to enter *291up judgment upon the referee’s report of the damages which the defendants have sustained by reason of the injunction; nor, when the referee’s report is confirmed, is there anything in the 222d section of the Code authorizing the entry of a judgment for the amount against the sureties. * * *
“ The sureties are not necessarily parties to that proceeding, and the assessment may be made without notice to them (Methodist Churches agt. Barker, 18 N. Y., 465); and, where the report is confirmed, it is conclusive upon them as to the extent of the damages, but there is, for all I know, no way in which byond this the sureties can be charged, except by an action upon the undertaking.”.
This case seems to me to be directly in point. The general term of the common pleas, on appeal, while reversing the order appealed from, on another ground, adopted the views of the chief judge on this point.
I am of the opinion, therefore, that the portion of the order referred to was erroneous, and I direct it to be stricken out and that the judgment entered thereon be vacated. Motions granted.