Steinhardt v. Beer — 16 N.Y.S. 609

Majority

p. 609

Steinhardt et al. v. Beer.

(Superior Court of New York City, General Term.

December 10, 1891.)

Headnote

Arrest—Fraudulent Intent—Non-Performance of Contract.

Defendant entered into an executory agreement with plaintiffs in order to induce them to part with certain property. Meld, that failure to perform the agreement by defendant would not raise a presumption that he intended non-performance at the time of the agreement, and that, in the absence of other facts showing a fraudulent intent, the court properly vacated an order of arrest entered against defendant. ,

Appeal from special term.

Action by Emanuel Steinhardt and another against Max Beer. From an order vacating an order for defendant’s arrest, plaintiffs appeal.

Affirmed.

Argued before Sedgwick, C. J., and Dugro, J.

Edward Jacobs, for appellants. David M. Newberger, for respondent.

This is an appeal from an order vacating an order of arrest. No facts are set forth in the papers upon which the order of arrest was granted that show the defendant to have been guilty of fraud. It appears that he promised to do certain things in order to induce the plaintiff's to part with property. That he so promised with intent to deceive is not stated. Because he failed to perform his agreement does not raise a presumption that he in

p. 610

tended non-performance at the time he made the agreement; retroactive presumptions are not applicable to eases such as this. The order appealed from should be affirmed, with $10 costs.