James Ellwood Sanders, Appellant, v. Emile Ader, Defendant; Joseph Griffing, Respondent

James Ellwood Sanders, Appellant, v. Emile Ader, Defendant; Joseph Griffing, Respondent. Injunctiondependent upon the cause of action—the right thereto must appear in the complaint. Where the light to an Injunction depends upon the nature of the action (Code Civ. Proc. § 603), the complaint must be presented upon the application therefor, and no facts can be considered except such as are set forth in the complaint. Appeal by the plaintiff, James Ellwood Sanders, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk.of the county of New York on the 31st day of January, 1898, denying his motion for an injunction pendente lite. Edward F. Harding, for the appellant. Arnold C. Weil, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The injunction herd 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 áre 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 lie 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. 'Present■—-Van Brunt, P. J., Rumsey,Ingraham and McLaughlin, JJ. Order affirmed, with ten dollars costs and disbursements..