Squire v. Senia — 21 N.Y.S. 1027

Majority

p. 1027

SQUIRE v. SENIA et al.

(Common Pleas of New York City and County, General Term.

February 6, 1893.)

Headnote

Appeal from trial term.

Action by Newton Squire against Benjamin B. Senia and others to recov'er on an undertaking given to obtain an order of arrest pursuant to the provisions of Code Civil Proc. § 559. From a judgment for plaintiff, entered on a verdict directed by the court, defendants appeal. Affirmed.

Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ.

Kenneson, Crain & Alling, (T. D. Kenneson, of counsel,) for appellants.

Rudd, Hunt & Wilder, (William R. Wilder, of counsel,) for respondent.

The facts, as they transpired on the trial of this action, are the same as in Squire v. McDonald. 21 N. Y. Supp. 1025 , (herewith decided,) and the question urged for review does not differ in any respect from the one there •discussed. - We affirmed the judgment appealed from upon the ground that the order vacating the order of arrest issued against the plaintiff in an action against him for the alleged conversion of personal property, and which had become final by lapse of time within which an appeal therefrom should be taken, is a final decision that plaintiff in the action for conversion was not entitled to the order ■of arrest, notwithstanding that the action may result in a judgment for plaintiff, and that, because of the identity of the cause for arrest with the cause of action, such a judgment would imply that the plaintiff was entitled to an order of arrest.

The judgment herein appealed from must therefore likewise be affirmed, with costs. All concur.