They are also allowable even without security where the injunetion is sought for the protection of a receiver or other officer of the court in the discharge of his duties, if the order be made by the court.21

In other cases they are allowable before or after answer, upon security. Security is not dispensed with by asking a receiver.

In other cases than those above stated the third method is not allowable except before answer.

The fourth method is rarely resorted to except where the danger of immediate injury is slight, and it is preferred to argue the question of right before giving security.

File the motion papers within ten days after securing the injunction order.22

2. Applying on affidavits alone.] - A temporary injunction will not be granted on affidavits alone, without a complaint, where the right to the injunction depends on the nature of the action," and no facts can be considered (pertinent to establishing the cause of action) unless they are contained in the complaint. The complaint must demand a permanent injunction as part of the relief sought.25 Such an injunction order, granted without a complaint. though irregular, is not void.26

If the facts on which the injunction is sought are extrinsic to the cause of action, an application may be made upon affidavit alone,27 with the summons.

3. Using the complaint as an affidavit.] - By the New York statute28 a verified complaint is to be deemed an affidavit, and so it should upon sound general principles29 without the aid of such

21 See Phoenix, etc., Co. v. North River Const. Co., 6 Civ. Pro. Rep. 106. 22 Gen. Rule No. 4.

23 N. Y. Code Civ. Pro., § 603; Woodburn v. Hyatt, 34 App. Div. 246, 54 N. Y. Supp. 597; Huntington v. Cortland Home Tel. Co., 62 App. Div. 517, 71 N. Y. Supp. 84.

24 Sanders r. Ader, 26 App. Div. 176, 49 N. Y. Supp. 964; Sheehy r. MeMillan, 26 App. Div. 140, 49 N. Y. Supp. 1088; Cushing v. Ruslander, 49 Hun, 19, 1 N. Y. Supp. 505, 15 Civ. Pro. Rep. 106; Goldman r. Corn, 111 App. Div. 674, 97 N. Y. Supp. 926; Loewenstein t. Loewenstein, 114 App. Div. 65. 25 McHenry . Jewett, 90 N. Y. 58.

26 Roosevelt t. Edson, 51 N. Y. Super. Ct. 238 (rev'd on other grounds, 1 How. Pr. [N. S.] 482).

27 Cont. Store Service Co. v. Clark, 100 N. Y. 365, 1 How. Pr. (N. S.) 497, 7 Civ. Pro. Rep. 183.

28 N. Y. Code Civ. Pro., § 3343, subd. 11.

29 Where the complaint states all the facts necessary to lay the foundation

a statute, unless the verification is such that the allegations are not positively sworn to.30 But it is the better practice where the complaint is an essential part of the papers upon the application (see preceding paragraph), to apply on affidavit in support of the complaint, because the rules of pleading forbid the incorporation of evidence, and it is usually desirable to present facts outside of the right of action itself, showing the necessity of an immediate restraining order. Moreover, under the New York rule of court there must be, on an ex parte application, an affidavit that no previous application has been made, or, if any, stating what.

31

32

Where the right to an injunction depends upon the nature of the action, and the complaint is so drawn and verified as to aver all the material facts upon the personal knowledge of the party who verifies it, the question whether the complaint will be sufficient as to facts without any other affidavit will depend on whether the oath of the party is sufficient proof.33

--

4. Relative functions of complaint and affidavits.] — It is not the function of the complaint as a pleading to state evidence. So far as it does state facts with such a verification as makes it evidence of them, it is available. When a complaint is used as an affidavit, the evidential force of it must be tested by the same rule that is applied to other affidavits, which is, that only such allegations as are sworn to positively, or, if stated on information and belief, where the source of the information and grounds of the belief, are given, can be taken as true or established.34 It is the

for an injunction, and the plaintiff swears to them by verification positively, the complaint may be used for the purpose of obtaining an injunction. Minor . Terry, 6 How. Pr. 208, 1 Code, Rep. (N. S.) 384; s. P.. Woodruff v. Fisher, 17 Barb. 224 (where the injunction was dissolved on other grounds); Levy r. Ley, 6 Abb. Pr. 89; Freshwater v. Pittsburgh R. R. Co. 6 W. Va. 503. 30 Southern Plank Road Co. v. Hixon, 5 Ind. 165 (bill only verified in old form, in alternative); S. P., City of Atchison v. Bartholow, 4 Kans. 124; Hone v. Moody, 59 Ga. 731; Chesapeake R. R. Co. v. Huse, 5 W. Va. 579.

See article on VERIFICATION, p. 485.

31 See Clark T. King & Bro. Pub. Co., 40 App. Div. 405, 57 N. Y. Supp. 975. 32 See MOTIONS, page 118.

83 That it may be sufficient, see Fowler v. Burns, 7 Bosw. 637; Woodruff r. Fisher, 17 Barb. 224; Levy r. Ley, 6 Abb. Pr. 89; Scott r. Doneghy, 17 B. Monr. (Ky.) 321, 324; Franklin Savings Institution r. M. M. Bank of Wheel ing, 1 Met. (Ky.) 156. But see the rules as stated in the next succeeding paragraphs.

34 Clark v. King & Bro. Pub. Co., 40 App. Div. 405, 57 N. Y. Supp. 975. Yet an allegation of defendant's intention to continue the wrongful act, based on information and belief without disclosing the source, is not to be treated as a nullity when not met by a denial by defendant of the existence of such

function of the affidavits to supply evidence not afforded by the complaint, to corroborate by other witnesses evidence that is afforded by the complaint, and to state the condition of the cause. Where the right to a temporary injunction depends on the nature of the action, all the facts necessary to show that plaintiff is entitled to the relief asked, must be alleged in the complaint. A general allegation of irreparable injury apprehended or threatened, not supported by facts or circumstances tending to justify it, is wholly insufficient; 36 the court should not grant the injunction unless satisfied that continuance of the act during pending of action will produce injury, and the complaint must show the nature of the damages and why they would be irreparable. The affidavits may support these allegations with evidence, and may corroborate them with collateral facts,39 but it is unavailing to introduce into the affidavit a substantial ground of relief as to which the complaint does not contain any allegations; for the affidavits to such facts are considered only as evidence of the allegations of the complaint.40

41

5. Prudential rules for drawing injunction papers- the complaint.]— See that the verification, if not positive and unqualified, is not in the old form, qualified by saying, "except as to the matters therein stated on information," etc., but by saying, "except as to the matters therein stated to be alleged on information.” etc. If it be qualified in the old form, it will not avail as proof,

an intent; such intent under such circumstances may properly be assumed to be established. Finegan r. Eckerson, 32 App. Div. 233, 52 N. Y. Supp. 993. If such intent were denied, the injunction should be vacated. Gray t. De Castro, 82 Hun, 281, 31 N. Y. Supp. 470.

35 See paragraph 2 and next paragraph.

36 McHenry r. Jewett, 90 N. Y. 58; Brass t. Rathbone, 153 id. 435; Goldman r. Corn, 111 App. Div. 674, 97 N. Y. Supp. 926; Ehrich v. Grant, 111 App. Div. 197, 97 N. Y. Supp. 600.

37 Flint r. Charman, 6 App. Div. 121, 39 N. Y. Supp. 892. The fact that some damage will be sustained, by fair inference, is sufficient. Williams r. Montgomery, 145 N. Y. 518, 528.

38 It was held in Glascoe v. Willard, 44 Misc. 166, 89 N. Y. Supp. 791, that if the complaint fails to show such facts, the defect cannot be supplied by the affidavits submitted.

39 Brooks r. Bicknell, 3 McLean, 250.

40 Stull r. Westfall, 25 Hun, 1; Sanders v. Ader, 26 App. Div. 176, 49 N. Y. Supp. 964. But the court may consider the case made from all the papers presented. Sun Print. & Pub. Assoc. v. Delaney, 48 App. Div. 623, 62 N. Y. Supp. 750.

41 See p. 486.

but full proof must be presented in the affidavits, in addition to the complaint.12

If the injunction is sought by reason of the nature of the action, the question of the right to a temporary injunction depends upon the allegations of the complaint, and unless it appears from such allegations that plaintiff is entitled to the final judgment of injunction, the injunction pendente lite cannot issue. Where the complaint itself shows no cause of action or right to relief in such case, such right cannot be established by affidavit.43 Let the prayer for relief mention an injunction pending the action, especially if the motion is before answer."

6.

the affidavits.] Let the evidence come from those hav-. ing, as far as practicable, personal cognizance of the facts sworn to and let the affidavit show that this personal knowledge exists.45 Reasonable exceptions, however, are allowed in applying this requirement. Thus, a creditor's bill may state the judgment, execution, etc., upon information of the attorney.40

If a third person's oath is substituted for that of the plaintiff as to facts which might be presumed to be within the plaintiff's cognizance, state in the affidavit the reason why it is not made by plaintiff.

If statements are made on information and belief, state the sources of the information and grounds of belief, and disclose the

42 See article on VERIFICATION, p. 485.

43 Heine v. Rohner, 29 App. Div. 239, 51 N. Y. Supp. 427; Hudson Valley R. R. Co. v. O'Connor, 95 App. Div. 6, 88 N. Y. Supp. 742; Leonard r. Schmidt, 109 App. Div. 549, 96 N. Y. Supp. 491. And see paragraph 2, supra.

44 It appears that under the present system the omission of this prayer for preliminary injunction ought never to be alone regarded as sufficient ground for denying a contested motion. The only existing justification for now applying this rule is in a case where by reason of the omission of the prayer defendant may have postponed answering, and thus subjected himself to an ex parte injunction, but as even after answer the court may grant an ex parte ad interim injunction on a notice of motion, the distinction is not very substantial, and the defect of prayer, if it be one, should be allowed to be immediately supplied by amendment if the complaint be otherwise sufficient. Vermilyea r. Vermilyea, 14 How. Pr. 470.

In substance there is no more reason why the complaint should pray for a temporary injunction than for any other provisional remedy desired.

45 The rule is enforced in New York, with considerable strictness in some judicial departments, that an affidavit ostensibly based on personal knowledge may be rejected by the court if it appears that the statements must have been made upon hearsay, the source of which is not disclosed.

46 Hamersley v. Wyckoff, 8 Paige, 72.

reason why positive affidavits are not produced; otherwise they constitute no proof of the facts.47

48

If documents are relied on as evidence, or as sources of information, annex copies of them; to state the effect of their provisions is insufficient. There is an exception to this rule in the case of stating the results of the examination of voluminous documents, such as books of account, in which case the general rule of evidence will sanction a general statement of the result; but the competency of the affiant, and his thorough examination of the documents, should be shown, and any specific fact, such as the state of a particular account, should usually be evidenced by embodying or annexing a copy of it.

7.the injunction.] - The language of an injunction should be so clear and explicit that an unlearned man can understand it without employing counsel to advise him what he has a right to do. It should in itself contain sufficient to apprise the reader what he is restrained from doing, without the necessity of his resorting to the bill or complaint on file to ascertain what is meant.51

49

Hence to enjoin, for instance, an infringement of trade-mark, it is better to embody in the injunction a copy of the label to be protected, or to annex it and refer to it as such; for if it be, as

47 Cupples Envel. Co. v. Lackner, 99 App. Div. 231, 90 N. Y. Supp. £54; Gillette . Noyes, 92 App. Div. 313, 86 N. Y. Supp. 1062.

48 Meyer r. Moress, 106 App. Div. 556, 94 N. Y. Supp. 771.

49 Laurie r. Laurie, 9 Paige, 234; Clark r. Clark, 25 Barb. 76.

50 The rules in the text were approved and applied in Lyon r. Botchford, 25 Hun, 57, refusing to punish violation of injunction against removing bark from the premises "until the same shall have been ranked as usually done by tanners in 1871" [nine years before the suit], and "from doing any act or thing upon or about said premises not permitted or allowed by the contract mentioned in such complaint." So an injunction forbidding defendant to interfere with "any of the said partnership property, or from collecting the partnership debts or other moneys," but containing no reference whatever to any particular firm or co-partnership business, is not sufficiently definite to put the defendant in contempt. Moat v. Holbein, 2 Edw. 188; s. P., Cother r. Midland Railway, 2 Phillips, 469; s. c.. 5 Railw. C., 187, holding that an injunction should be so expressed as to inform the defendant of the precise limits of his right, and not expose him, in the exercise of such right, to the consequence of violating a vague injunction. Compare, however, Parker r. First Avenue Hotel Co. (Eng. Ct. of App., 1883), 49 Law Times R. (N. S.) 318. holding that a general form is proper, unless the case is ripe for decision, and the right can be defined. In this case the injunction was against obstructing lights as they had been previously enjoyed, and it was held that only in special circumstances should the court define the permissible structure in detail; other wise plaintiff was entitled to an injunction in general terms.

51 But actual knowledge may be enough to put him in contempt. Sullivan v. Judah, 4 Paige, 444; Byam v. Stevens, 4 Edw. 119.