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Knight v. Abell

1 N.Y.S. 288 Court N.Y. Gen. Term Decision date 1888-05-18 English

Delivered by Bartlett, J.

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p. 288
Knight et al. v. Abell.
(Supreme Court, General Term, First Department.
May 18, 1888.)

Headnote

Arrest—In Civil Cases—Cause of Action Founded on Several Matters.
An order of arrest, granted under Code Civil Proc. N". Y. § 549, subd. 4, providing that a defendant may be arrested in an,action on a contract, if the complaint alleges fraud, will be vacated, where the complaint, setting out but one cause of action, alleges four distinct transactions upon which such cause of action is founded, and the papers contain enough to warrant a finding of fraud in only one of the transactions.
Appeal from spécial term, Hew York county; Donohue, Justice.
Action by Jacob Knight, Arthur M. Garlock, and Joseph H. Knight against John H. Abell. An order of arrest was vacated, and plaintiffs appeal.
Argued before Van Brunt; P. J., and Macomber and Bartlett, JJ.
John H. Atkinson, for appellants. Charles O'Neil, (Moses Herrman, of counsel,) for respondent.

This order of arrest was granted in an action upon a contract for the purchase and. sale of eggs and butter, where it was alleged in the complaint that the defendant was guilty of fraud,in contracting or incurring the liability. Code Civil Proc. § 549, subd. 4. The complaint set out only one cause of action. Pour separate sales were specified: one on July 13, one on July 18, and two on August 2, 1887. There was enough in the papers to-

p. 289
warrant a finding of fraud as to the sales made on the 2d of August, but not sufficient to warrant such a finding as to the prior sales. In Easton v. Cassidy, 21 Hun, 459 , there was but a single cause of action, which was founded, however, upon different demands. Some of these demands were of a character which would support an order of arrest, and others would not. This general term held that the order of arrest was properly vacated. A different view seems to have been entertained, in the Second department, in the case of Fitch v. McMahon, 3 N. Y. St. Rep. 147 . That case was subsequently affirmed in the court of appeals, ( 103 N. Y. 690 , 9 N. E. Rep. 497 ;) but the decision there was placed upon different grounds from that of the general term, and does not touch the questions involved in this appeal. Under these circumstances, we must follow Easton v. Cassidy, supra, and affirm the order appealed from. Order affirmed, with $10 costs and disbursements.

Yan Brunt, P. J., and Macomber, J., concur.

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