Blakeslee v. International Motor Co.

161 A.D. 624, 147 N.Y.S. 49, 1914 N.Y. App. Div. LEXIS 9311

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 1914
• Status: Published

Opinion

Per Curiam:

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 It is familiar law that the first complaint was superseded by the amended complaint.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 preliminary 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.