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Mathushek Piano Manufacturing Co. v. Pearce

21 N.Y.S. 921 Court N.Y. Gen. Term Decision date 1892-12-12 English

Delivered by BARNARD, P. J.

Contents

Majority

p. 921
MATHUSHEK PIANO MANUF’G CO. v. PEARCE.
(Supreme Court, General Term, Second Department.
December 12, 1892.)

Headnote

Arrest in Civil Action—When Ordered. A complaint stated that defendant, by false representations, procured a contract for the sale of plaintiff’s pianos, and that defendant received, under the contract, large values, and converted the same to his own use. An order of arrest was granted on an affidavit, but nothing appeared as to whether notice was given previous to granting the order. Held, that the order should be affirmed.
Appeal from special term.
Action by the Mathushek Piano Manufacturing Company against James Pearce. From an order of arrest, defendant appeals. Affirmed.
Argued before BARNARD, P. J., and PRATT, J.
J. W. Alexander, for plaintiff.
J. H. Whitelegge, for defendant.

This action was commenced on the 19th of April, 1892. The defendant appeared by attorney on the 20th of April, 1892, and demanded that copies of all papers in this action be served on him. On the 14th of May, 1892, an order of arrest was signed by a judge of this court. The appeal papers do not show that the order of arrest was granted without notice to the defendant’s attorney. The affidavit upon which the application for the order was made was sworn to on the 1st of May, 1892, but the papers were silent- as to the fact of notice being given upon the granting of the order. The complaint states but a single cause of action. The facts stated are to the effect that the defendant, by false representation, procured a contract for the sale of plaintiff’s pianos; that defendant received, under the contract, large values, and converted the proceeds to his own use. The gist of the action is the fraudulent- procurement of the contract, and thereby the possession of the property converted. The order should be affirmed, with costs.