Werbelovsky v. Michael

Citations

• 106 A.D. 138
• 94 N.Y.S. 156

Syllabus

<p>Application for an injunction — a cause of action must be stated — an allegation in a areditofs action, to the effect that the plaintiff recovered judgment against the defendant in the New York Municipal Court, is insufficient.</p> <p>An application for an injunction, whether made under section 603 of the Code of Civil Procedure, governing injunctions where the right thereto depends upon the nature of the action, or section 604 of said Code, governing injunctions where the right thereto depends upon extrinsic facts, should not be granted except upon proof that the plaintiff has a cause of action.</p> <p>If the application be made under section 603, the omission of a necessary allega- . tion from the complaint in the action is fatal and cannot be supplied even by affidavit. ;</p> <p>Semblé, that it is otherwise if the application is made under section 604.</p> <p>An allegation contained in the complaint in a judgment creditor’s action, to the effect that the plaintiff recovered judgment against the defendant in the Municipal Court of the city Of New York for a sum specified, does not, in the absence of an allegation that the Municipal Court had jurisdiction, either of the parties or of the subject-matter of the action, establish the-plaintiff’s right / to maintain the judgment creditor’s action, as there is no presumption that a local court has jurisdiction. ' '</p>