McClure v. Levy — 22 N.Y.S. 1006

Majority

p. 1006

McCLURE v. LEVY.

(Supreme Court, General Term, First Department.

April 14, 1893.)

Headnote

Aerest in Civil Actions—Vacating Order—Evidence.

Where the cause of arrest is identical with the cause of action, the order of arrest should not be vacated unless it appear with reasonable certainty that plaintiff could not recover in the action.

Appeal from special term, Hew York county.

Action by David McClure, as receiver of the Life Union, against Louis P. Levy, to recover funds of plaintiff converted by defendant. On complaint and affidavits the special term made an order ordering defendant’s arrest, and, from an order denying a motion to vacate such order, defendant appeals.

Affirmed.

Argued before YAH BRUHT, P. J., and IHGRAHAM, J.

Browne & Sheehan, (Isaac L. Egbert, of counsel,) for appellant.

Herbert B. Turner, for respondent.

In this action the cause of arrest in identical with the cause of action, and the- order of arrest should not be vacated unless it appears with reasonable certainty that the plaintiff ■cannot recover in the action. From the facts before the special term it would appear that this defendant appropriated the funds ■of the company for the payjnent of notes of doubtful validity, which were not negotiable in their character, and the money was paid out of a fund which was pledged to the certificate holders, and not to be applied to the general uses of the corporation. To entitle the plaintiff to recover in the action at all it is necessary to prove the allegations of the complaint, that the defendant wrongfully withdrew from the funds of the corporation the sum of $10,141.06, and embezzled and converted the same to his own use; and we think there was before the court evidence tending to sustain that allegation. The order should, therefore, be affirmed, with $10 costs and disbursements.