Terry v. Green

Devendorf, J. This motion is made upon the plaintiff’s papers to vacate an injunction order granted herein; the ground of the motion is the infirmity of the affidavit upon which the order was granted. The following defects or irregularities appear: The application for the injunction was made ex parte on an affidavit which failed to state whether any previous application had been made for such injunction. There is no venue in the affidavit. The affidavit was not made by the plaintiff, and no excuse for his failure to make the same was shown. • The injunction order does not mention the summons and complaint and, iff-the complaint was used on the motion for the injunction, then, all the papers used or read on the motion were not specified in the injunction order according to Rule III, Supreme Court; neither does the order recite the grounds for the injunction. The undertaking, executed m Otsego county, was not authenticated by the certificate of the clerk of that county and, hence, not proved as a deed to be recorded in Oneida county, where the venue of the action is laid. Rule XXY of the Supreme Court provides that the affidavit should state whether any previous application has been made for the order asked, but this is an irregularity which Ihe court could disregard. Bean v. Tonnelle, 24 Hun, 353; Pratt v. Bray, 10 Misc. Rep. 445; Skinner v. Steele, 88 Hun, 307. Failure to state grounds for the injunction, as required by section 610, Code of Civil Procedure, is also an irregularity and could well be disregarded by the court if the injunction order were granted on a sufficient, verified complaint and affidavit, if copies thereof were served on the defendant with Ihe order. Church v. Haeger, 33 N. Y. Supp. 47. The fact that the affidavit upon which the injunction order [12] was granted was not made by the plaintiff, and no excuse for his failure to make the same shown, presents a more serious question. The attorney does not state in this case any reason why the plaintiff did not make the affidavit. The affidavit is largely made up of conclusions and cannot be deemed, in that regard, to contain a statement of the attorney’s personal .knowledge; but, rather, the plain inference is that such attorney has not personal knowledge of the facts as to which he affirms. Crowns v. Vail, 51 Hun, 204. I think the objection that the affidavit is fatally defective,, not only in substance, but from the fact that it is made by the attorney and ño reason given- why it was not made by the plaintiff, is well taken. Talbert v. Storum, 21 N. Y. Supp. 719; Pach v. Geoffroy, 19 id. 583; Clark v. Sullivan, 8 id. 565. As stated, some of the defects in the plaintiff’s papers, used on the application for the injunction order herein, could be passed over as irregularities; but, it appearing that the only paper referred to and mentioned in the injunction order, and on which it appears to have been based, is the affidavit of -the plaintiff’s attorney, and no reason being given why such affidavit was not made by the party, and the affidavit being necessarily largely upon information and belief, without stating the source and failing in itself to be fuli and complete as to the necessary facts containing the alleged cause of action, and the grounds for the injunction not being recited, either in the injunction order or in the affidavit, and the summons and complaint not being made a part of the proceedings are grounds for the vacating of the injunction^ so serious that they cannot be overlooked or disregarded by the court. Por the reasons above stated, I have come to the conclusion that the papers upon which the injunction order was obtained are entirely insufficient and such order must, therefore, be vacated and set aside. An order will enter accordingly, with ten dollars costs to the defendant, to abide the event. Ordered accordingly.