Huntington v. Cortland Home Tel. Co. — 71 N.Y.S. 84

Majority

p. 84

(62 App. Div. 517.)

HUNTINGTON et al. v. CORTLAND HOME TEL. CO. et al.

(Supreme Court, Appellate Division, Third Department.

June 28, 1901.)

Headnote

Preliminary Injunction—Application—Complaint—Affidavit.

Under Code Civ. Proc. § 603, providing that, when the right to an injunction depends on the nature of the action, it may be granted pending the action, on a complaint showing plaintiff entitled to a judgment restraining the commission or continuance of an act, an injunction in such case cannot be granted on an affidavit alone, no complaint being filed, though the facts therein stated would have been sufficient if set forth in a complaint.

Appeal from special term.

Action by William R. Huntington, executor, and others, against the Cortland Home Telephone Company and another. From an order continuing an injunction against defendants during the pendency of the action, they appeal. Reversed.

A temporary injunction order was obtained ex parte from a justice of the supreme court by the plaintiffs, restraining the defendant 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 plaintiff,

p. 85

and answering affidavits were used by the defendants. The special term made an order continuing such injunction, and restraining the defendant from entering upon the plaintiffs’ lands and performing any of the acts complained of; and from that order this appeal is taken.

Argued before PARKER, P. J., and KELLOGG, EDWARDS, SMITH, and CHASE, JJ.

Bronson & Davis (Rowland L. Davis, of counsel), for appellant.

J. & T. E. Courtney (O. U. Kellogg, of counsel), for 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, 51 N. Y. Supp. 427 . Much less can affidavits take the place of a complaint, and act in lieu of one. Sanders v. Ader, 26 App. Div. 176 , 49 N. Y. Supp. 964 ; Woodburn v. Hyatt, 34 App. Div. 246 , 54 N. Y. Supp. 597 . 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.

Order reversed, with $10 costs and disbursements. All concur.