Hyperlawhypertext legal database Sanders v. Ader 49 N.Y.S. 964

← Cases

Sanders v. Ader

49 N.Y.S. 964 Court N.Y. App. Div. Decision date 1898-02-25 English

Contents

Majority

p. 964
SANDERS v. ADER et al.
(Supreme Court, Appellate Division, First Department.
February 25, 1898.)

Headnote

Temporary Injunction.
Under Code Civ. Proc. § 603, unless a cause of action is set out in the complaint, and an injunction demanded as a part of the relief sought, no temporary injunction can be granted; and therefore, on applying for an injunction, the complaint must be presented.
Appeal from special term.
Action by James E. Sanders against Emile Ader and another. From an order denying a motion for an injunction, plaintiff appeals.
Affirmed.
Argued before VAN BRUNT, P. J., and RUMSEY, McLAUGHLIN, and INGRAHAM, JJ.
Edward F. Harding, for appellant.
Arnold C. Weil, for respondents.

The injunction here is asked for under the authority of section 608, Code Civ. Proc., where the right to injunction depends upon the nature of the action. In that case the facts must appear from the complaint, and no facts can be considered except such as are set out in the complaint, and facts alleged in an affidavit are not material, and cannot be considered, unless they are alleged in the complaint. Stull v. Westfall, 25 Hun, U Unless a cause of action is set out in complaint, and an injunction is demanded as a part ■of relief sought, an injunction cannot be granted. McHenry v. Jewett, 90 N. Y. 58 . The complaint must therefore be presented on applying for injunction, and, if he fails to present it, the plaintiff does not show that he is entitled to such relief. No complaint was presented here, and therefore the order denying injunction was correct, and should be affirmed.

Cases cited