Hyperlawhypertext legal database Lennon v. Brandt 21 Abb. N. Cas. 257

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Lennon v. Brandt

21 Abb. N. Cas. 257 Court N. Y. City Court, Special Term ; English

Delivered by McAdam, Ch. J.

Contents

Majority

p. 257
LENNON v. BRANDT.
N. Y. City Court, Special Term ;
May, 1888.

Headnote

Arrest; omission to allege grounds in complaint^ Where the defendant was arrested, after the service of the summons and complaint, on the ground of a fraudulent disposition of his property, the complaint failing to allege the grounds of arrest, and no amended complaint was served—Held, that the order should be vacated, as it is necessary, since the amendment of 1886 to Code Civ. Pro.,, §§ 549,'550, to allege the facts in the complaint.
Motion to vacate order of arrest.
This action, brought by Thomas J. Lennon against John1 Brandt, was commenced by the service of the summons and complaint on April 25, 1888.
The complaint set forth a cause of action for goods sold and delivered. On April 27, 1888, the plaintiff obtained an order for the arrest of the defendant, upon an affidavit setting forth that the defendant had disposed of his property with intent to defraud his creditors. Thereupon the defendant moved to vacate the order of arrest, on the ground that the complaint served in the action failed to set forth a sufficient cause of action, as required by Code Civ. Pro. § 549, and also that no amended complaint has been served or made as required by Code Civ. Pro. § 558.[1]
p. 258
John R. Tresidder, for the defendant and the motion.
Hiram, Ketchum, opposed.

Since the amendment to sections 549 and 550 of the Code, made in 1886 (ch. 672), the plaintiff, if he obtains an order to arrest the defendant on the ground ■of fraudulent disposition of property, must allege the facts in his complaint, or the arrest must be vacated (§ 558). "Where the arrest is applied for after the service of the «complaint, the court, “ before ” granting the order, may, without notice, direct the service of an amended complaint,

p. 259
so as to make the allegations conform to the Code requirement (§ 558, supra). The object of the amendment of 1886 was to change the rule previously existing, and to require the plaintiff to put into his complaint the allegations as to fraudulent dispositions of property that have in this instance been left out. The cases construing the provisions referred to prior to their amendment are inapplicable. The motion to vacate the order of arrest must therefore be granted, but without costs.