Huntington v. Cortland Home Telephone Co. — 62 A.D. 517

Majority

p. 517

William R. Huntington, as Sole Executor, etc., of William R. Randall, Deceased, and Others, Respondents, v. Cortland Home Telephone Company and William Martin, Appellants.

Headnote

Injunction — where the right thereto depends on the nature of the action it must he hosed on a complaint.

A motion for a temporary injunction made under section 603 of the Code of Civil Procedure, in a case where the right thereto depends upon the nature of the action, can he based only upon the complaint, and cannot be granted before the complaint has been drawn, notwithstanding that the plaintiff submits affidavits stating- facts which, if properly set forth in a complaint, would be sufficient to. warrant the granting of the injunction.

Appeal by the defendants, the Cortland Home Telephone Company and another, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Cortland on the 3d day of October, 1900, continuing a temporary injunction.

A temporary injunction order was obtained, ex parte, from a justice of the Supreme Court by the plaintiffs, restraining the defendants from erecting its poles and stretching its wires thereon, in the highway across the plaintiffs’ premises in the city of Cortland; and an order granted therewith required defendants to show cause why it should not be continued during the pendency of the action. Such order was granted upon the summons and two affidavits setting forth the reasons why such relief was asked. Upon the return of such order at Special Term, additional affidavits were read by the plaintiffs and answering affidavits were used by the

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defendants. The Special Term made an order continuing such injunction and restraining the defendants from entering upon the plaintiffs’ lands and performing any of the acts complained of; and from that order this appeal is taken.

Rowland L. Ramis, for the appellants.

O. U. Kellogg, for the respondents.

It is a serious question whether this injunction should not have been denied for the-reason that the plaintiffs would have a full and adequate remedy at law for all the acts which they seek to restrain. But we may not pass upon that,question, because the plaintiffs practice has been such that they clearly are not entitled to hold the order which they have obtained.

It appears from the affidavits used that their right to an injunction, if any they have, depends upon the nature of this action. It is clearly one given by section 603 of. the Code of Civil Procedure. In such a case a motion for a temporary injunction can be based only upon the complaint, and it cannot be granted upon affidavits, although they state facts which if properly set forth in a complaint would be sufficient to support the order. Under that section .it must appear from the complaint not only that the plaintiffs demand but that they are entitled to the injunction.

In this case no complaint was produced before the court. The plaintiffs’ attorney, in an affidavit, stated that it was.not yet drawn. He also stated what relief he would ask therein because of the facts stated in the affidavit; but manifestly the complaint did not show anything. It was not yet in existence. A complaint- cannot even be helped out by affidavits (Stull v. Westfall, 25 Hun, 1 ; Heine v. Rohner, 29 App. Div. 239 , 242), much less can affidavits take the place of a complaint and act in lieu of one. (Sanders v. Ader, 26 App. Div. 176 ; Woodburn v. Hyatt, 34 id. 246 .)

Within the authority of these cases, the papers upon which this order was granted were entirely insufficient to sustain it, and for that reason it must be reversed.

All concurred.

Order reversed, with ten dollars costs and disbursements.