The Bank of Beloit v. Beale.

of Sweet, if agent he could be called, and to have a return of his money, with the interest thereon.

That relief, in his judgment, might be preferable and more beneficial than a successful pursuit of the proceeds of the wool, or a judgment against any one, or all, who might have been charged with the conversion of it. On the 7th of September, 1858, he verified his complaint, and the relief it prayed for is a judgment for the balance of the money not accounted for, with interest.

The present action was not commenced until the 3d of November, 1858. Over three months prior to that, Sweet had taken his position as between himself and Sherwood, and had been seeking to enforce it by an action at law; a position which renounced all obligation to take the wool, and all right to it; a position to which he has at all times since steadily adhered, by prosecuting his action to judgment, and the imprisonment of Sherwood's body on an execution issued on such judgment.

There was no reason, therefore, when this action was commenced, why the defendants should not have paid to the plaintiffs the proceeds of the wool in their hands, according to their contract; and nothing occurred between that time and the trial exempting them from that obligation.

For these reasons, and those assigned for denying the motion made at special term for a new trial, I think the judgment should be affirmed. Ordered accordingly.

CASES OF PRACTICE

AND

DECISIONS IN SPECIAL PROCEEDINGS

AT THE

GENERAL AND SPECIAL TERMS

AND AT CHAMBERS.

ABRAHAM F. FOWLER, Plaintiff and Appellant v. WILLIAM BURNS et al., Defendants and Respondents.

1. An injunction can only be granted where it appears by the complaint that the plaintiff is entitled to the relief demanded, and where, also, it appears by affidavit that sufficient grounds exist therefor.

complaint, as to When so drawn,

2. The affidavit may be so drawn, by a reference to the incorporate its allegations in and make them a part of it. and sufficient to authorize, and an injunction is granted thereon, it is granted on an affidavit. It is a misuse of words to say, in such a case, that it is granted on a verified complaint, though the affidavit be merely a verification of the complaint, in the form prescribed by the Code.

3. A defendant may move to vacate it either upon the complaint and affidavits on which it was granted, or upon affidavits on his part, with or without

answer.

4. If he move upon papers other than those upon which it was granted, it is indispensable that he move on affidavits.

5. If he has put in answer, so verified, whether by the usual verification, or by a separate formal affidavit annexed to, and by reference incorporating the answer and its allegations into the affidavit, so as to make them part of the affidavit, and he moves upon the answer, thus verified, to dissolve the injunction, he moves upon affidavit, and the plaintiff may oppose the motion by affidavits in addition to those on which the injunction was granted.

6. An injunction cannot be granted on an unverified complaint; and one issued upon sufficient grounds cannot be vacated by an unverified answer. 7. The denials and allegations contained in it, in order to enable a defendant

Fowler v. Burns.

to move upon it to dissolve an injunction, must be so authenticated by a positive oath, as to make them in substance and effect part of the affidavit which authenticates them.

8. When the defendant moves to dissolve upon an answer thus authenticated, he moves upon an affidavit within the meaning of the Code; and the motion may be opposed by new affidavits on the part of the plaintiff.

9. This is so, whether the answer merely denies all the allegations of the complaint, or in addition to that, contains new matter.

10. A complaint and answer are pleadings, and whether verified or not, perform offices as such. But they are none the less affidavits and entitled to be used as such, when their allegations are in such form, and are so verified, that by the verification the truth of the allegations is positively affirmed.

(Before BOSWORTH, Ch. J., and HOFFMAN, WOODRUFF, MONCRIEF and ROBERTSON, J. J.)

Heard October 20, decided November 10, 1860.

APPEAL by the plaintiff, from an order vacating an injunction. The facts are fully stated in the opinion of the

court.

A. K. Hadley, for Appellant.

C. D. Miller, for Respondents.

BY THE COURT. WOODRUFF, J.-The complaint in this case, alleges that the plaintiff was on the 25th of April, 1860, the owner of certain articles of furniture consigned to Wm. and Thomas Burns, doing business as commission merchants, under the name of "Burns Brothers," for sale; that Burns Brothers being insolvent, made a general assignment to their brother, the defendant James Burns, for the benefit of their creditors, and among other property assigned and delivered to him the said property of the plaintiff; that the plaintiff as soon as he was notified of the assignment, informed the assignee that he was the owner of the said property, and forbade the sale thereof by him; that the said assignee, nevertheless, sold and delivered the property, claiming to dispose of the proceeds according to the provisions of the said assignment; and that the plaintiff has reason to fear and does fear that he will distribute the same among the creditors of Burns

Fowler v. Burns.

Brothers; and that the said assignee is insolvent. Upon these allegations, the plaintiff prays an injunction to restrain such distribution, and that the defendants pay over to the plaintiff the value of the property, and for other relief, &c. The allegations in the complaint are positive, and not stated on information or belief, and the complaint was verified in the usual manner by the plaintiff's affidavit.

An ex parte injunction having been granted, the defendants served their answer; the averments and claims in which were stated as of the positive knowledge of some or one of the defendants, and which was in the usual form, verified by the affidavit of all of the defendants; and, thereupon they moved, upon the complaint and answer, that the injunction order be vacated. On the hearing of the motion, the plaintiff offered to read an affidavit in opposi tion to the motion, and his affidavit was rejected, it being decided by the justice, at special term, that, on a motion. by the defendants upon such complaint and answer, the plaintiff could not read affidavits in opposition thereto, and the motion was thereupon granted. The plaintiff has appealed to the general term from the order dissolving the injunction.

It will suffice to say, of the contents of the answer, that it denied that Burns Brothers were commission merchants, or that the plaintiff ever owned the property. mentioned in the complaint,-or that he ever consigned it, or any part of it, to the said Burns Brothers for sale, on commission or otherwise; and alleges that the firm of Burns Brothers were the sole owners thereof; that they purchased the same in October, 1859; it admits the insolvency of Burns Brothers, and their assignment, and that' James Burns has sold the property at auction, and intends to apply the proceeds according to the trusts in the assignment, by paying the debts of Burns Brothers, and denies that James Burns, the assignee, is insolvent; and, in short, it fully meets the case made in the complaint, and, if unexplained and uncontradicted, overcomes the equities shown thereby. The affidavit offered by the plaintiff explained the