This is an appeal from an order confirming the report of a referee, to whom it was referred to ascertain and report the amount of damages sustained by the defendant in consequence of an injunction, issued in this action at the instance of the plaintiff. TJpon the granting of the injunction order in this action, the plaintiff with a surety entered into an undertaking under section 222 of the Code. The amount specified in the undertaking was $250, and the terms of the undertaking were, that the plaintiff would pay to the defendant such damages, not exceeding the said sum of $250, as he might sustain by reason of the said injunction, if the court should finally decide that the plaintiff was not entitled thereto. The original action was referred to a referee, who rendered a decision, in March, 1871, that the complaint be dismissed, with costs. Thereupon, and on the 5th of April, 1871, no final judgment haying then been entered in the action, an order was made referring it to a referee to ascertain and report what damages had been sustained by the defendant by reason of the injunction. The referee proceeded and took testimony on the subject, and reported that he had ascertained and determined that the damages sustained by the defendant, by reason of the injunction, were $750. On the coming in of this report of the referee, an order was made confirming the same and assessing the damages, sustained by the defendant by reason of the injunction, at $750, with ten dollars costs of the motion, and $380.38 cents for the disbursements and referee’s fees paid in the reference; and it was ordered that the plaintiff pay to the defendant the sum of $1,140.38, within thirty days after the service upon him of a copy of the order. This is the order appealed from. The plaintiff insists that the order of reference was erroneous, by reason of its having been made before final judgment in the action. This objection cannot be considered on this appeal. To raise this ques_ tion the plaintiff should have appealed from the order of reference itself. The undertaking was limited to the amount of $250, but the referee has reported the damages at $750, and the order appealed *161from peremptorily requires the payment of the latter sum, with the costs and expenses. It seems to have been settled in this State, that a court of equity could not award damages to a defendant by reason of an injunction improperly obtained under its general powers. To obviate this difficulty and afford parties proceeded against by injunction a summary means of obtaining indemnity, in case it should eventually appear that the complainant was not'entitled to an injunction, the late chancellor established the thirty-first rule of the late Court of Chancery. (Cayuga Bridge Co. v. Magee, 2 Paige, 116; S. C., 6 Wend., 85; Leavitt v. Dabney, 9 Abb. Pr. [N. S.], 373; S. C., 40 How. Pr., 280; Garcie v. Sheldon, 3 Barb., 232.) It would seem, therefore, that the authority of a court of equity to award damages to the defendant, in an action before it, in consequence of damages which he may have sustained by reason of the issuing of an injunction in the action, rests entirely upon the provisions of the Code of Procedure, which are substituted for the thirty-first rule of the late Court of Chancery. The section (§ 222), under which the undertaking is required, expressly limits the liability assumed by the undertaking to an amount to be specified therein; and, as the power of the court to award damages depends upon the provisions of that section, we think it manifest that the amount awarded, and by the court ordered to be paid, must be limited to that sum. The report of the referee, however, is not necessarily so limited. He was ordered to report the amount of damages.actually sustained, whether more or less than the amount specified in the undertaking. Doubtless, a defendant who has been restrained by injunction and sustained damages thereby, could maintain an action for indemnity, in the nature of an action» on the case for a malicious prosecution, as in other cases where a party is damnified by an unfounded suit. But in such case the elements to sustain the action must exist, as in other cases where an action for malicious prosecution can be maintained.
The amount ordered to be paid then, in this case, ought to be reduced by the difference between the $750, the amount of damages reported by the referee to have been sustained by the defendant, and the sum of $250, the amount specified in the undertaking. As the assessment and order is made against the plaintiff in the action, against whom the court has the power to award the costs of any *162proceedings in the action, the order as to costs and disbursements was proper. The order appealed from, therefore, should be reversed fro tanto. The above considerations seem to cover all the material objections to the order. As to the objection that the referee does not, in his report, indicate the items of damages allowed by him in his estimate, the remedy in such a case is to apply for an order for a further and more specific report. But in this case it is probable that the reduction of the amount ordered to be paid will render such further proceedings unnecessary. The amount ordered to be paid, in and by the order appealed from, is reduced by the sum of $500, and affirmed for the residue, with costs of this appeal to neither party.
Present ■— Barnaed, P. J., and Taloott, J.Ordered accordingly.