Kimball v. Flagg — 15 Daly (N.Y.) 496

Majority

p. 496

Elise A. H. Kimball, Respondent, against Jared Flagg, Appellant.

(Decided February 3d, 1890.)

Headnote

Where an order of arrest is vacated on plaintiff’s own papers on grounds purely, technical, and the papers show that no malice was intended, the court may impose, as a condition, that defendant stipulate not to sue for damages in consequence of the arrest.

Appeal from that part of an order of this court, vacating an order of arrest, which imposed a condition that defendant stipulate not to bring any action for damages, either upon the undertaking or against the plaintiff, inconsequence of the arrest.

The order of arrest was granted upon the complaint in the action and affidavits presented therewith, neither of which, taken alone, was sufficient to sustain it. The complaint, not

p. 497

being properly verified, could not be used as an affidavit, wherefore the court vacated the order of arrest on the ground of the insufficiency of plaintiff’s papers, imposing the condition above mentioned. From the part of the order imposing such condition, defendant appealed.

August T. Wagener, for appellant.

E. M. See, for respondent.

The appellant contends the court had no power to impose a condition on vacating the order of arrest on the plaintiff’s own papers. It may be conceded that, when the order of arrest is vacated on plaintiff’s papers, where the action is not one in which an order of arrest cannot be issued or where it is made without authority in law, yet it does riot follow such a condition may not be imposed in any case; as a matter of fact, it is often imposed where the court is satisfied that the arrest was without malice and upon probable cause. In the present case, the learned judge who vacated the order and imposed the condition, expressly says he did so on grounds purely technical, but which he felt bound to observe, and the papers themselves show no malice was intended.

We therefore think he was justified in imposing the condition, and that the order should be affirmed, with $10 costs.

Bischoff, J., concurred.

Order affirmed, with costs.