I think the order of the special term should be reversed. In December the plaintiff obtained an injunction which was dissolved on the 7th of February, 1882. In January, 1883, the plaintiff applied for leave to discontinue the action, which was granted, and an extra allowance was awarded to the defendant. There is nothing in the order granting the allowance which shows that the court intended that the defendant should not also recover whatever damages he had sustained by the wrongful obtaining of the injunction. The defendant procured an order of reference for the ascertainment of damages he had incurred by reason of the injunction, and the referee allowed damages, to which no objection can be made, unless it be held that by granting the extra allowance the court had already compensated the defendant for such damages as the injunction had caused him. The allowance may have been large, but, if it were, it was not for the judge at special term to reduce it. An appeal lay to the General Term if the allowance were excessive, but the judge at special term had no power to appropriate the allowance to the payment of damages that may not have been, and very probably were not, in the mind of the court that granted it. The law is perfectly well settled that the granting of an extra allowance *280is no bar to the recovery of damages upon an injunction undertaking, unless it is made so by the order granting the allowance (Troxell v. Haynes, 5 Daly 390).
As the defendant may recover damages on the injunction undertaking for the trouble which the injunction has caused him, it may be highly proper to take that fact into consideration when an allowance is applied for, for the defendant ought not to recover damages and also to receive an extra allowance as compensation for one and the same grievance. It follows, therefore, that the court may provide by order that the allowance shall, if accepted, be in satisfaction of the defendant’s claim for the labor he encountered in getting rid of the injunction ; and where such an order is made, the defendant will be bound by it, unless he procures a reversal on appeal. But unless such an order be made, it will not be presumed, nor can it lawfully be assumed that the allowance was intended by the court to be in full satisfaction of the defendant’s claim upon the undertaking. In this case it appears that the learned judge thought the allowance extremely liberal, and that it was enough to pay the defendant for all the labor that was performed in the suit. Whether this be so or not, he was bound by the judgment of the court that granted the allowance, and he had no power to undo the action of that court, as he did do, when he adjudged that what was given as an allowance should, because it was too large, be diverted from that purpose and applied to the payment of damages on the undertaking.
The authorities cited by the counsel for the appellant sustain this view.
The order should be reversed, with costs and disbursements, and the report of the referee should be confirmed.
). F. Daly and Beach, JJ.,, concurred.
Order reversed, with costs, and report of referee con- • firmed.