Majority
p. 469Kimball v. Flagg. (Common Pleas of New York City and County, General Term. February 8, 1890.) Argued before Bookstaver and Bischoff, JJ.
Headnote
Arrest in Civil Cases—Vacating Order—Conditions.Where an order of arrest is vacated on technical grounds, arid the papers show that no malice was intended, it is proper for the court to interpose as a condition that defendant stipulate not to sue for damages in consequence of the arrest.
Appeal from special term.
Action by Elise A. H. Kimball against Jared Flagg. A condition that defendant stipulate not to sue for damages, either on the undertaking or against plaintiff in consequence of the arrest, was attached to the order vacating the order of arrest, and defendant appeals.
August P. Wagener, for appellant. Edward M. Lee, for respondent.
The appellant contends the court had no power to impose a condition on vacating the order of arrest on the plaintiff’s own papers. It may be conceded that when the order of arrest is vacated on plaintiff’s papers, where the "action is not one in which an order of arrest cannot be issued, or where it is made without authority in law, yet it does not follow such a condition may not be imposed in any case; as a matter of fact, it is often imposed where the court is satisfied that the arrest was without malice and upon probable cause. In the present case the learned judge who vacated the order and imposed the condition expressly says he did so on grounds purely technical
p. 470
but which he felt bound to observe, and the papers themselves show no malice was intended. We therefore think he was justified in imposing the condition, and that the order should be affirmed, with $10 costs.