Woodburn v. Hyatt

34 A.D. 246

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1898
• Status: Published

Opinion

Per Curiam:

The affidavit upon which the injunction order was granted clearly shows that the right thereto is dependent upon the nature of the action. Indeed, the sole purpose of the action is to procure an injunction restraining the defendant from violating the covenant contained in the respective deeds. It is, therefore, an action where the right to an injunction depends upon the nature of the case, and by virtue of the provisions of section 603 of the Code of Civil Procedure, an injunction can only issue where it appears from the complaint that the plaintiff is entitled to a judgment restraining the acts óf the defendant from which he would suffer injury during the pendency of the action. Such is the plain language of the Code, and also of the authorities construing the same. (Sanders v. Ader, 26 App. Div. 176; Heine v. Rohner, 29 id. 239.)

A case cannot be presented by a complaint where there is no complaint. This injunction was granted upon an affidavit, and while it is true that if the facts therein were properly set forth in a complaint they might be held sufficient, to support the order which was made, yet the court cannot construe the affidavit into a complaint, and a complaint the Code requires. Section 607 of the Code has reference to an action where an injunction may be granted, not necessarily dependent upon the nature of the action. (Cushing v. Ruslander, 49 Hun, 19.) In such a case the injunction may issue upon an affidavit showing a proper case, and may accompany the summons. (Code Civ. Proc. § 608.)

The order is, therefore, without authority, and should be reversed.

All concurred. ■

Order reversed, with ten dollars costs and disbursements, and injunction vacated.