February Term, 1898.
Edward F. Harding, for the appellant.
Arnold C. Weil, for the respondent.
Present — VAN BRUNT, P.J., RUMSEY, INGRAHAM and McLAUGHLIN, JJ.
The injunction here is asked for under the authority of section 603, where the right to an 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, 1.)
Unless a cause of action is set out in the complaint and an injunction is demanded as a part of the relief sought, an injunction cannot be granted. ( McHenry v. Jewett, 90 N.Y. 58. ) The complaint must, therefore, be presented on applying for an 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 the injunction was correct and should be affirmed.
Order affirmed, with ten dollars costs and disbursements.