Opinion
June Term, 1901.
Rowland L. Davis, for the appellants.
O.U. Kellogg, for the 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), much less can affidavits take the place of a complaint and act in lieu of one. ( Sanders v. Ader, 26 App. Div. 176; Woodburn v. Hyatt, 34 id. 246.)
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.
All concurred.
Order reversed, with ten dollars costs and disbursements.