Hyperlawhypertext legal database Markey v. Diamond 20 N.Y.S. 847

← Cases

Markey v. Diamond

20 N.Y.S. 847 Court N.Y.C.P. Decision date 1892-11-21 English

Contents

Majority

p. 847
Markey v. Diamond.
(Common Pleas of New York City and County, General Term.
November 21, 1892.)

Headnote

Arrest in Civil Cases—Affidavit on Information and Belief.
Affidavits based on information only are not sufficient to support an order of arrest in a civil action where plain tiff desires to enforce his claim by arrest and imprisonment of defendant, but the evidence should be'such as would be receivable on the trial of the action to justify an ordinary judgment. 19 N. Y. Supp. 181 , affirmed.
Appeal from city court, general term.
Action by Philip Markey against Charles Herbert Diamond. From a judgment of the general term of the city court, ( 19 N. Y. Supp. 181 ,) reversing an order of the special term and granting defendant’s motion to vacate an order of arrest on the papers, plaintiff appeals. Affirmed.
Argued before Daly, C. J., and Pryor and Bischoff, JJ.
Frank H. Gray, for appellant. Mooney & Shipman, for respondent.

The appellant has not made out a good case for the reversal of this order. It appears to us that the criticism of the general term of the city court upon this affidavit is justifiable. It contains assertions of the falsity of the representations made by the defendant; but they are evidently based upon information only,.and the sources of- the information are not given, nor any. reason why better proof is not offered. Where, in a civil action, the plaintiff desires, so to speak, to enforce his claim at the outset by arrest and imprisonment of the defendant,—in other words, to have execution before obtaining judgment,—it is not too much to ask him to present such evidence as alone would be receivable upon the trial of the action to justify an ordinary judgment for money. Such has been the practice in this court, and we are glad to see that the city court is alive to the propriety of enforcing the same rule. We think that the decision of the city court is not only correct, but quite wholesome in its tendency. The order is affirmed, with costs.