Bowman, Thompson & Co. v. Fuerst — 28 N.Y.S. 168

Majority

p. 168

(76 Hun, 441.)

BOWMAN, THOMPSON & CO., Limited, v. FUERST et al.

(No. 50.)

(Supreme Court, General Term, First Department.

March 16, 1894.)

Headnote

Arrest in Civil Cases—Motion to Vacate.

An order denying a motion to vacate an arrest will not be disturbed on appeal, where the right to maintain the action and the order of arrest both depend on the construction of a contract between the parties to the action, and such construction may dependí on the course of business between the parties, which can be satisfactorily established only on the trial.

Appeal from special term, New York county.

p. 169

Action by Bowman, Thompson & Co., Limited, against Joseph FFuerst, Albert F. Fuerst, and Jules Fuerst. From an order denying a motion to vacate an order of arrest, defendants appeal. Affirmed-

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

I. M. Dittenhoefer, for appellants.

James Dunne, for respondent.

As the right to maintain this action and the order of arrest granted herein both depend upon the construction to-be given to the agreement entered into between the parties to this action, and as this construction may depend upon the course of business of the parties under it, which course of business can only be satisfactorily established upon the trial, we think that upon this-appeal we should not attempt such construction, and therefore affirm the order appealed from, with $10 costs and disbursements.