89 N.Y.S. 791 | N.Y. Sup. Ct. | 1904
This is an application to continue an injunction pendente lite restraining the defendant from using a cut or opening, which it is alleged she caused to be made in the west basement hall of the demised building, without the permission of the plaintiffs, the landlords thereof. Since the right to the injunction depends upon the nature of the action, the facts entitling the plaintiffs to it must be averred in the complaint. McHenry v. Jewett, 90 N. Y. 58. The complaint in the action merely alleges “that unless this defendant is restrained great and irreparable damages will be sustained by the plaintiffs.” Ho facts are stated showing the nature of the damages which the plaintiffs may sustain unless the defendant is restrained, or why they will be irreparable, and, therefore, under the authorities, the complaint is clearly insufficient to entitle the plaintiffs to relief by injunction. In McHenry v. Jewett, supra, the court (at p. 62) said: “ So also it is alleged that it is greatly against the plaintiff’s interest as a shareholder, to permit the defendant to vote upon the shares, and that the plaintiff will suffer great and irreparable injury, if the defendant is permitted to do so. But no facts justifying these conclusions are stated, and the mere allegation of serious or irreparable injury, apprehended or threatened, not supported by facts or circumstances tending to justify it, is clearly insufficient.” In Brass v. Rathbone, 153 N. Y. 435, it was sought to restrain water commissioners from shutting off the water from the premises owned by the plaintiff. The complaint merely alleged that great and irreparable damage was apprehended and threatened, but the statement was not supported by facts and circumstances tending to justify an inference that any damage would be suffered. The court, in holding that the complaint did not show that the plaintiffs were entitled to
Motion denied, with ten dollars costs to abide event, with leave to plaintiffs to renew application upon new papers.