¶1The evidence taken before the referee was limited to the value of the attorneys’ services upon the motion for a continuance of the injunction pendente Ute. The referee allowed the value of such services (fixed at $650) as damages sustained by reason of the injunction. In this we think he erred. It was held in Childs v. Lyons (3 Robertson, 704) and in Allen v. Brown (5 Lans., 511) that the costs and counsel fees of an unsuccessful effort to remove an injunction were not recoverable as damages arising from its existence. This rule does not apply where the continuance of the injunction results merely from a postponement until the trial of a decision upon the merits. (Andrews v. Glenville Woolen Co., 50 N. Y., 287.)
¶2"Where, however, there is no such postponement, and the continuance is upon the merits, or the defendant fails in his motion to dissolve because of some irregularity or fault on his part, the expenses incident to the unsuccessful application are not recoverable.
¶3In the case under consideration, the defendants opposed the mo*513tion to continue the injunction. It appears that a part of the services for which the sum of $650 was allowed, consisted in the preparation of opposing affidavits. The separate value of this latter service was not shown; ■ It also appears that these opposing affidavits were not used upon the motion, and that the defendants contented themselves with a criticism of the plaintiff’s papers. The •surety was not chargeable with the expense incurred in the preparation of affidavits which the defendants themselves deemed unnecessary or useless.
¶4It is impossible upon these papers to estimate the independent value of the services which were essential to the proper presentation of the defendants’ opposition to the motion. But if it were, the case would still be within the rule laid down in the authorities above cited, for. the reason that the inj unction was continued upon the merits. The defendants sought to get rid of the temporary injunction, and to prevent its continuance, without presenting their side of the ease.
¶5It cannot therefore be said, in the words of Rapallo, J., in Andrews v. Glenville Woolen Co. (supra),that the “ motion did not fail through any fault on his part.” Won constat, but if they had used the affidavits which had been prepared, the result would have been as satisfactory to them upon the motion as it was, subsequently, upon the trial.
¶6The court determined the merits so far as the defendants chose to go into them. The merits, in the aspect of the case presented by the motion, consisted of the plaintiff’s right to relief upon his own papers. The inquiry upon that head was not deferred; but was necessarily passed' upon by the continuance of the injunction. It is true that the court directed the plaintiff to file additional security. But that was not inconsistent with an adjudication upon the merits in the plaintiff’s favor. The court thereby in effect said to the plaintiff: “ "While you have made out a case for an injunction pendente Ute, yet the security which you have given is less than we should have required. Now, as the injunction is a matter of discretion, we will withhold it, notwithstanding you make out a case, unless you furnish what we deem adequate security.” If the defendants had presented their opposing affidavits, and the court, *514though finding that such affidavits raised a conflict of evidence, had. nevertheless seen fit to retain the injunction until the issues could be deliberately disposed of upon the trial, the case would have been within the principle of Andrews v. Glenville Woolen Co. (supra).But here there was no such conflict. There was therefore nothing-to be deferred. The question was whether, upon the conceded facts of the complaint, the plaintiff, as matter of law, was entitled to an injunction. That question could not be postponed. It demanded,, and, as we are bound to assume, received present consideration. Wc are also bound to assume that if the defendants had presented the same case upon the motion which they subsequently presented upon the trial, they would have been successful. Either that, or-tho inquiry would have been deferred. In either case, the defendants could have recovered their legitimate expenses. As it is, they cannot recover them, for the reason that they failed to get rid of the injunction, and so failed because they did not do all in their power to succeed. In other words, because of their own fault.
¶7It will not be necessary, therefore, to consider the other very grave question presented by the appeal, namely, the right of the defendant Phelps to recover “ in the name and behalf of her co-defendant,” a question which does not seem to us to be so entirely settled by the principles which were applied to the facts of Andrews v. Glenville Woolen Co. as the respondents appear to believe.
¶8The order appealed from should be reversed, with $10 costs, and disbursements of the appeal, and the motion to confirm the referee’s report denied.
¶9Order reversed, with $10 costs, and disbursements, and motion denied.