Majority
p. 935(36 Misc. Rep. 487.) SCHWARTZ v. SCHWARTZ. (Supreme Court, Special Term, Erie County. December, 1901.)
Headnote
Arrest—Action for Sf.paration.Under Code Civ. Proc. § 549, subd. 2, authorizing an order of arrest in an action to recover damages for a personal injury, such an order may be granted in a wife’s action for separation on the ground of her husband’s cruel treatment.
Action by Catherine M. Schwartz against Edward B. Schwartz for separation for cruel treatment. Motion by defendant to vacate order of arrest.
Denied.
Clarence H. Beane, for plaintiff.
George A. Davis, for defendant.
This is an action for a separation. The order of arrest was granted on the sole ground that the action is one to recover damages for a personal injury under section 549 .of the Code of Civil Procedure. The basis of that section of: the present Code is section 179 of the Code of Procedure. The language of section 549, relating to the right to arrest in actions for a personal injury,- is substantially similar to the language used in section .179. Under the last-named section it was held in the case of-Jamieson v. Jamieson, 11 Hun, 38 , that an action for. separation on the -ground of cruel and inhuman treatment was an action for a personal:injury,
p. 936
and an order of arrest could be lawfully upheld therein. If this were an open question, I should be inclined to disagree with the reasoning of the court in the last-named case, but I am constrained to follow the precedent established, and therefore the motion to vacate the order of arrest is denied, but the amount of the undertaking is reduced to $2,500.
Ordered accordingly.