Blakeslee v. International Motor Co. — 161 A.D. 624

Majority

p. 624

George E. Blakeslee, Appellant, Impleaded with Others, Plaintiffs, v. International Motor Company and Others, Respondents.

Second Department,

April 10, 1914.

Headnote

Appeal — order denying motion for temporary injunction — dismissal of appeal — demurrer to complaint sustained.

An appeal from an order denying a motion for an injunction pendente lite will "be dismissed where it appears that a demurrer to the complaint has been sustained and the original complaint is the only complaint upon which the motion for the injunction is made, even though after the demurrer the plaintiff has pleaded over. The right to injunctive relief must appear by the complaint and cannot be established by affidavits.

Appeal by the plaintiff, George E. Blakeslee, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of November, 1913.

Xenophon P. Huddy [ William E. Butler with him on the brief], for the appellant.

Edward W. Hatch, for the respondents.

This appeal is from an order of the Special Term that denies a motion for an injunction pendente lite. The appellant made a preliminary motion in this court for dismissal of this appeal upon the ground that a demurrer interposed to the complaint had been sustained, that thereupon the plaintiff had pleaded over, but that the original complaint was the only complaint upon which the motion for the said injunction was made. It is familiar law that the first complaint was superseded by the amended complaint. The right to the injunctive relief asked for in this case must appear by the complaint, and cannot be established by affidavits. (Goldman v. Corn, 111 App. Div. 674 ; Loewenstein v. Loewenstein, 114 id. 65; Sanders v. Ader, 26 id. 176.) The ehmination of the original complaint by demurrer was in effect a final decision that the plaintiff, so far as, that pleading is concerned, was not entitled to the pre

p. 625

liminary injunction. (Williams v. Montgomery, 148 N. Y. 521 , 524; Joyce Inj. § 330, and cases cited.)

Therefore, the motion to dismiss the appeal must be granted, with costs.

Jenks, P. J., Thomas, Oaee, Rich and Putnam, JJ., concurred.

Motion to dismiss appeal granted, with costs.