Gagliardo v. Crippen

Cope, C. J. delivered the opinion of the Court—Norton, J. and Crocker, J. concurring. This is an appeal from an order granting a preliminary injunction. The application for the order was heard on the complaint, and on an affidavit of the defendant Park in reply thereto.

It is objected that the affidavit is not properly a part of the record, as it is not embodied in a statement. The Practice Act (Sec. 343) dispenses with a statement in cases of appeal from an order made upon affidavits, and provides that the affidavits shall be annexed to the order in the place of the statement. The effect of this provision is to make the affidavits a part of the record, and the only question is whether it applies to the case of an order made upon the complaint as well as upon affidavits. The counsel for the respondent contends that it does not, but is limited in its application to orders made upon affidavits exclusively. This, we think, is not the proper construction. We regard the provision as extending to all cases in which affidavits may be used, and simply as dispensing with a statement as the means of making the affidavits a part of the record.

So far as the merits are concerned, we think the injunction was improvidently granted. The allegations of the complaint are fully and specifically controverted by the affidavit. It is claimed that the complaint itself is insufficient; but as the equities, whatever they may be, are denied, it is unnecessary to pass upon the objections to the complaint.

Order reversed, and cause remanded.