Penfield v. White — 8 How. Pr. 87

Majority

p. 87

SUPREME COURT.

Penfield and others agt. White.

Headnote

A copy of the papers upon which an injunction is granted, must in all cases be served with the injunction, or the service of the injunction will be set aside as irregular.

Albany Special Term,

March 1853.

Motion to vacate an injunction order served on defendant March 8, 1853, on six different grounds stated in the notice of motion, or for such further or other order as the court might grant. It appeared that the only paper served on defendant with the injunction order was the summons.

S. H. Foster, for Defendant.

J. A. Millard, for Plaintiff.

The Code provides that a copy of the affidavit on which the injunction was granted, must be served wilh the injunction {Code, §220). This applies to all cases of the service of injunctions, for an injunction can only be allowed upon affidavit. An injunction can not be allowed on a complaint alone, though it appears from the facts set forth in it that the plaintiff is entitled to an injunction, unless such complaint be duly verified so as to make it in legal effect, if not in form, an affidavit (Krom vs. Hogan, 4 How. Pr. R. 225.)

In this case no paper, except the summons, was served with the injunction. The defendant could not know whether the injunction order was granted on a complaint duly verified, so as to make it an affidavit, or on a separate affidavit, independent of the complaint, or, in the absence of both. The object of the provisions requiring service of a copy of the affidavit, was to apprize the defendant of all the facts alleged on which the injunction was granted, to enable him to proceed at once to obtain relief by an application to vacate it, if he should think proper to do so. The service was, therefore, irregular and must be set aside.

p. 88

The defendant asks to vacate or dissolve the injunction. To this he is not entitled. No facts are before the court on which such "a motion could properly be decided; for it does not appear on what papers, or under what circumstances the injunction order was granted. The defendant having asked for too much, is not entitled to costs of this motion.