A. F. Engelhardt Co. v. Benjamin — 2 A.D. 91

Majority

p. 91

A. F. Engelhardt Company, Appellant, v. Benjamin Benjamin, and Louis Kaufman, Respondents.

Headnote

Order of wrest — cannot issue unless there is a complaint.

An application for an order of arrest under subdivision 4 of section 549 of thq Code of Civil Procedure cannot be made before the existence of a complaint in the action, inasmuch as the Code gives the remedy in a case “ where it is alleged in the complaint that the defendant was guilty of a fraud.”

Lawrence v. Foxwell ( 49 N. Y. Super. Ct. 378 ), followed.

Appeal by. the plaintiff, the A. F. Engelhardt Company, from an ' order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of December, 1895, vacating an order of arrest theretofore made in the action.

This action was commenced by the issuance of a summons on the 9th day of December, 18,95, on which day an order of arrest was granted in the action against the defendant Kaufman, upon affida^

p. 92

v'its setting forth that he had made false representations in incurring the liability sued upon. -. ■

, Upon the return of an, order to show causé why the-said order of arrest should not he Vacated, the Special Term vacated the order of arrest upon the grpnnd that it “was not granted upon'the complaint, neither was there any proof that there was a complaint alleging the fraud.”

From the order vacating the order of arrest, this appeal is taken.

Howard. A. Sjperry,, for the appellant.

Frederick E. Anderson, for -the respondent Kaufman.

The question whether an application for an. order of arrest under subdivision 4, section 549,. Code of Civil Procedure, can be made before the- existence of a coinplaint in the action has been the subject of conflicting decisions. In Hall v. Conger (1 How. Pr. [N. S.] 88) it was held by the Special Term of the Supreme Court that a complaint was unnecessary. In Lawrence v. Foxwell ( 49 N. Y. Super. Ct. 278 ) the reverse rule, was declared. We agree with the latter decision. The Code gives the right to the remedy under this subdivision “ where it is alleged in the complaitit that the defendant was, guilty of a. fraud.” It is difficult to see .how the court can learn what is alleged in the complaint when there is no complaint. Justice Andrews, in Hall v. Conger, has, in our opinion, been misled by a consideration of the provisions of section 558, relative to vacating an order of arrest when the complaint filed fails to show a sufficient cause of action under section 549- He construed that section as contemplating that the complaint might not be issued or filed until after the order of arrest had been granted. But this provision of the section was in the Code as originally enacted, while subdivision 4 was not added' - to'section 549 till 1886. The provisions of section 558, therefore, cannot influence the construction to be given to subdivision 4 of section 549. "

The order appealed from should be affirméd, with ten dollars costs and disbursements.

Afl concurred.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

Lawrence v. Foxwell 49 N. Y. Super. Ct. 278 N.Y. Super. Ct. 1883-06-02 p. 92