a. Order may be made prior to service of summons.-The injunction order may be granted prior to the service of the summons; to be served therewith (Leffingwell v. Chave, 19 How. 54; 10 Abb. 472). It is not indispensable to the validity of an injunction order that a complaint should precede or accompany it (Mattice v. Gifford, 16 Abb. 246); in other cases it is said that an injunction order cannot be granted on affidavits without any complaint (Morgan v. Quackenbush, 22 Barb. 76; The People v. The N. Y. Common Pleas, 3 Abb. 181; see Olmstead v. Loomis, 6 Barb. 153; Badger v. Wagstaff, 11 How. 562). As an injunction can be granted only when it appears by the complaint that the plaintiff is entitled to the relief demanded, there must therefore be a complaint upon which to found the motion for an injunction (Morgan v. Quackenboss, 22 Barb. 72). But if the motion is made on an affi davit which contains all the requisites of a complaint it is sufficient (id.)

b. The ground for the injunction must be shown by affidavit (Miliken v. Carey, 5 How. 272); but a complaint in which the allegations are made unqualifiedly, i. e., not on information and belief merely, and the allegations of which are sworn to be true, will be treated as an affidavit. This seems the result of the decisions (Roome v. Webb, 1 Code Rep. 114; Benson v. Fash, ib. 58; Krom v. Hogan, 2 id. 144; Minor v. Terry, 6 How. 210; Smith v. Reno, .id. 126; Penfield v. White, 8 id. 87; Woodruff v. Fisher, 17 Barb. 229; Jones Atterbury, 1 Code Rep. N. S. 87; Levy v. Ley, 6 Abb. 89; 15 How. 395; Badger v. Wagstaff, 11 How. 562); but the ordinary form of verification is not sufficient for the purpose (Bostwick v. Elton, 25 How. 362; Hecker v. Mayor of N. Y. 18 Abb. 369; 28 How. 211; Ramsey v. Erie R. R. Co. 7 Abb. N. S. 187). The plaintiff cannot make out the cause of action relied upon in the complaint by allegations in his affidavit (Hentz v. Long Island R. R. Co., 13 Barb. 646).

V.

c. An injunction, as a general rule, will not be allowed on mere information and belief (Campbell v. Morrison, 7 Paige, 160; Bank of Orleans v. Skinner, 9 id. 305; 1 Barb. Ch. Pr. 617; Livingston v. Bank of N. Y. 26 Barb. 304; Roome v. Webb, 3 How. 327; Pomeroy v. Hindmarsh, 5 How. 437; Rateau v. Barnard, 12 id. 464; and authorities collected, Crocker v. Baker, 3 Abb. 183; and see Pidgeon v. Oatman, 3 Rob. 706); and where facts are stated on information and belief, the sources of information and grounds of belief should be stated (The People v. Mayor of N Y., 9 Abb. 253); but the facts may be shown by the affidavits of any person cognizant of them (Bank of Orleans v. Skinner, 9 Paige, 305).

d. An injunction will not be granted after a demurrer to the complaint for not stating facts sufficient to constitute a cause of action, has been sustained (Mowbray v. Lawrence, 14 Abb. 160).

e. After an application for an injunction has been denied, an application to another court on the same state of facts is improper (Mayor of N. Y. v. Conover, 5 Abb. 252; 25 Barb. 514; and see Harrington v. American Insurance Co. 1 Barb. 244).

See note to section 226.

§ 221. (Am'd 1849.) Injunction after answer.

An injunction shall not be allowed, after the defendant shall have answered, unless upon notice, or upon an order to show cause; but in such case the defendant may be restrained, until the decision of the court or judge granting or refusing the injunction. See note to section 223, post.

§ 222. (Am'd 1849.) Security upon injunction. Damages, how ascertained.

Where no provision is made by statute as to security upon an

injunction, the court or judge shall require a written undertaking on the part of the plaintiff, with or without sureties, to the effect that the plaintiff will pay to the party enjoined, such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference, or otherwise, as the court shall direct.

a. Staying proceedings after judgment.—Where, on a complaint to set aside a judgment and execution on the ground of fraud, the complaint prayed an injunction, and an injunction was granted ex parte, on the execution merely of an undertaking as prescribed by this section without the bond or deposit required by the revised statutes in such a case the injunction order was ordered to be set aside unless the security required by the revised statutes was given in ten days (Cook v. Dickerson, 2 Sand. 691). "The revised statutes (2 R. S. 189, 190, §§ 141 to 149) require, that before the issuing of an injunction to stay proceedings in a personal action, after judgment, a deposit shall be made of the amount of the judgment; and a bond with sureties executed for the payment of the damages and costs to the adverse party. Power was conferred on the 'chancellor' to dispense with the deposit, and receive a sufficient bond for the amount of the judgment; and when the ground of the injunction is that the judgment was obtained by actual fraud, 'the chancellor' had the power to dispense with both deposit and bond. These provisions are not repealed by the code" (ib. See Gee v. Southworth, 10 Paige, 297; Dickey v. Craig, 5 id. 283).

b. It is not necessary that a judgment creditor of an insolvent corporation who brings suit for an injunction to restrain other creditors of the corporation from proceeding at law, and for the appointment of a receiver and an equitable distribution of the corporate assets, should give the bond or make the deposit prescribed by the above provisions of the revised statutes, to entitle him to the injunction prayed (Hutchinson v. N. Y. Central Mills, 2 Abb. 394). c. Superior court practice.-The practice in the superior court with reference to security on granting an injunction was declared in a note (1 Sand. 700; to be

"1. That on an order to show cause why an injunction should not be granted with a restraint in the mean time, the judge will in general require security.

"2. The plaintiff's own undertaking will not be received, unless he will justify as being a freeholder or householder, and worth double the sum specified, over and above all his debts and liabilities and exempt property.

"3. When a surety is required, his justification must be to the same effect.

"4. When a plaintiff residing out of the State applies for an injunction, he must furnish an undertaking executed by a resident surety.

d. Security. An undertaking with one surety would, it seems, be sufficient (Ward v. Whitney, 8 N. Y. 446). The plaintiff need not join in the undertaking (Leffingwell v. Chave, 19 How. 54; 10 Abb. 472). No particular form of security is required; any form of security as a penal bond which substantially complies with the requirements of this section, will suffice (Episcopal Church of Westchester v. Varian, 28 Barb. 644; Town of Gilford v. Cornell, 4 Abb. 220). An attorney may be a surety (Ryckman v. Coleman, 13 Abb. 398). The undertaking given on the issuing of an injunction should be approved by the judge and filed with the clerk (§ 423). An omission to file the undertaking, if done designedly, will entitle the defendant to have the injunction dissolved (Johnson v. Casey, 28 How. 492); and, even if the omis

sion be by oversight or accident, the plaintiff must pay the defendant costs of a motion to have the injunction vacated on the ground that the undertaking has not been filed (O'Donnell v. McMurn, 3 Abb. 391; Leffingwell v. Chave, 5 Bosw. 704). No provision for a reference need be contained in the undertaking (Higgins v. Allen, 6 How. 30). See Rule 4.

a. Where a corporation having authority to sue and be sued commences an action, and its president, for the purposes of an injunction, executes an undertaking prescribed by this section, in his official character, not professing to act as agent for the corporation, the undertaking will be regarded as the act of the corporation, and will bind it and not the officer (Epis. Ch. of St. Peter v. Varian, 28 Barb. 644).

b. The undertaking is for the benefit of all the defendants enjoined, whether served or not (Cumberland Coal and Iron Co. v. Hoffman Steam Coal Co. 39 Barb. 16).

c. If the sureties in the undertaking become insolvent, it is in the discretion of the court to order other sureties to be substituted (Willett v. Stringer, 15 How. 310).

d. Where the security given on the issuing of an injunction is inadequate, it is ground for vacating the injunction, unless the security is increased (Ryckman v. Coleman, 21 How. 404).

e. A defect in the undertaking is not ground for vacating the injunction (Williams v. Hall, 1 Bland, 194).

ƒ. Damages.-Where the plaintiff during the progress of the cause serves a notice upon the defendant, waiving the injunction, the defendant is not then entitled to an order of reference to ascertain his damages, because the court must "finally decide that the plaintiff was not entitled thereto." Until this point is reached in the progress of the action, the application for reference to ascertain damages is premature (Shearman v. N. Y. Central Mills, 11 How. 269). The order may be made after final judgment in the action (Metho. Churches of N. Y. v. Barker, 18 N. Y. 463). But not until judgment entered (Weeks v. Southwick, 12 How. 170). Where the plaintiff served a notice that he discontinued the action, and offered to pay the defendant's costs. The costs were adjusted by consent and paid. Afterward the defendant moved on the notice of discontinuance, the injunction order and the proceedings in the action, for an order that the action be discontinued and the injunction vacated, the court made an order declaring the action discontinued, and said that by the discontinuance the injunction would cease to operate (Hope v. Acker, 7 Abb. 308; see Dunkin v. Lawrence, 1 Barb. 447; Ħoyt v. Carter, 7 How. 140; and the defendant be entitled to a reference to ascertain his damages (Carpenter v. Wright, 4 Bosw. 655). The reference may be ordered, although not provided for in the undertaking (Higgins v. Allen, 6 How. 30). It was formerly otherwise (Garcie v. Sheldon, 3 Barb. 232).

9. In Coates v. Coates (1 Duer, 664), the injunction was dissolved, on motion founded upon the answer and affidavits, and the action discontinued. On reference to ascertain defendant's damages, the referee allowed counsel fees paid by the defendant in procuring the dissolution of the injunction. The court held the allowance proper (see 4 Edw. Ch. R. 292; 4 Paige, 440; 2 id. 116; Fitzpatrick v. Flagg, 12 Ább. 189); and further as to the items of damage allowed, see Wilde v. Joel, 15 How. 320; Bennett v. Brown, 20 N. Y. 99). Semble, a counsel fee in the cause may be allowed (Corcoran v. Judson, 24 N. Y. 106; see contra, Strong v. De Forest, 15 Abb. 427). But costs of an unsuccessful motion to dissolve the injunction are not allowable ( Childs v. Lyons, 3 Rob. 704). Counsel fees in the suit are not allowable, but costs as adjusted are allowed (Taacks v. Schmidt, 18 Abb. 308). In that case the costs of two actions were allowed (see report, and see 30 N. Y. 166). Upon a reference as to damages, the fact of damage and the amount must be established by satisfactory proof. If the referee finds no damages have been sustained, his report will not be disturbed (Dwight v. North. Ind. R. R. Co. 54 Barb. 271).

a. Want of jurisdiction in the court over the subject-matter of the action does not deprive the defendant of the right to damages on the undertaking given on the issuing of the injunction in the action (Cumberland Coal Co. v. Hoffman Steam Coal Co. 15 Abb. 78; 39 Barb. 16). A defendant who obeys an injunction, although never served therewith, is entitled to recover the damages he sustained by such obedience (id.)

b. The sureties upon the undertaking given upon the issuance of an injunction cannot be held liable for damages resulting from the continuance of the injunction pending an appeal from an order vacating it (Town of Guilford V. Cornell, 4 Abb. 220).

c. Where a referee reports the facts and not the damages which the defendants have sustained by reason of an injunction, the report will not be confirmed (Taaks v. Schmidt,, 19 How. 413).

d. It is in the discretion of the court ordering the reference, to direct that the sureties have notice, or to set aside the report upon their application (Metho. Churches of N. Y. v. Barker, 18 N. Y. 463).

e. Semble, the court cannot direct a judgment to be entered against the sureties for the amount of defendant's damages, an action must be brought on the undertaking (Fitzpatrick v. Flagg, 12 Abb. 189; Patterson v. Bloomer, 37 How. 450; see, however, Willet v. Scoril, 4 Abb. 405).

f. The report of the referee must be confirmed by the court before any action can be taken on it (Griffin v. Slate, 5 How. 205). Form of order confirming report, see Strong v. De Forest, 15 Abb. 427; Willett v. Scovil, 4 Abb. 405).

g. Action on undertaking.-It seems that the undertaking may be prosecuted without leave of the court (N. Y. Cent. Ins. Co. v. Safford, 10 How. 344; Higgins v. Allen, 6 How. 30). If there has been a reference to compute the damages, the report of the referee must be confirmed before a motion for leave to sue on the undertaking will be entertained (Griffin v. Slate, 5 How. 205; and see Wilde v. Joel, 15 How. 320).

h. In an action on the undertaking, the judgment of dissolution is conclusive, and the only question is the amount of damages (Gelston v. Whitesides, 3 Cal. R. 309; Metho. Churches of N. Y. v. Barker, 18 N. Y. 463).

i. Attachment for damages. Where the plaintiff has not signed the undertaking, on his failing in the action, payment of the damages of the defendant, by reason of the injunction, cannot be enforced against the plaintiff, otherwise than by obtaining an order that he pay such damages; on his failing to comply with the order payment may be enforced by attachment Patterson v. Bloomer, 6 Abb. N. S. 447; 7 id. 376; 37 How. 450; 38 id. 280).

§ 223. (Am'd 1849.) Order to show cause. time.

Restraint in mean

If the court or judge deem it proper that the defendant, or any of several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the defendant may, in the mean time, be restrained.

j. Security. Upon an order and temporary restraint under this section, security may be required as upon the allowance of an injunction under section 222 (Methodist Churches of. N Y. v. Barker, 18 N. Y. 463).

k. Showing cause.-On motion to show cause why an injunction should not issue, the defendant may read in opposition to the motion the

affidavits of third persons, although he has put in his answer denying the whole merits of the complaint. The answer in such case is only used as an affidavit (Florence v. Bates, 2 Code R. 110). The court will, however, permit the plaintiff to put in affidavits in reply to such new matter (ib.) Where a temporary injunction order had been granted ex parte, and notice given to the defendant to show cause why the temporary injunction should not be made permanent, the defendant, on the return of the order, showed cause by his answer, duly verified, and also by affidavits of several persons in support of the answer. Plaintiff's counsel objected to any affidavits being read in support of the answer. The objection was overruled (b.) On the hearing of an order to show cause why a preliminary injunction should not be continued, the plaintiff was allowed to support his complaint by additional affidavits, and explain affidavits read by defendant denying the facts in the papers, upon which the order to show cause was granted,-held that this was an exercise of discretion which could not be reviewed at general term (Childs v. Fux, 2 Rob. 650; 18 Abb. 112).

§ 224. (Am'd 1849.) Security upon injunction to suspend business of corporation.

An injunction to suspend the general and ordinary business of a corporation shall not be granted except by the court or a judge thereof. Nor shall it be granted without due notice of the application therefor, to the proper officers of the corporation, except where the people of this State are a party to the proceeding, and except in proceedings to enforce the liability of stockholders, in corporations and associations for banking purposes, after the first day of January, one thousand eight hundred and fifty, as such proceedings are or shall be provided by law, unless the plaintiff shall give a written undertaking, executed by two sufficient sureties, to be approved by the court or judge, to the effect that the plaintiff will pay all damages not exceeding the sum to be mentioned in the undertaking, which such corporation may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascer tained by a reference or otherwise, as the court shall direct.

See note to section 222.

§ 225. Motion to vacate or modify injunction.

If the injunction be granted by a judge of the court, or by a county judge, without notice, the defendant, at any time before the trial, may apply upon notice, to a judge of the court in which the action is brought, to vacate or modify the same. The application may be made upon the complaint and the affidavits on which the injunction was granted, or upon affidavits on the part of the defendant, with or without the answer.