Warshauer v. Webb — 1 N.Y. St. Rep. 130

Majority

p. 130

Warshauer v. Webb and another.

(City Court of New York,

General Term,

May 20, 1886.)

Headnote

Order of arrest—What is necessary to maintain the same.

A fair preponderance of proof is necessary to sustain an order of arrest;, but a case need not be made out by proof establishing the right beyond a. reasonable doubt.

Appeal from an order denying the defendants’ motion to-vacate the order of arrest herem.

W. H. II. Bussell, for defendants and appellants.

Morris Goodhart, for plaintiff and respondent.

We have carefully examined and considered: the affidavit upon wMch the order of arrest was granted,

p. 131

and the affidavits presented upon the motion, and we fail to find therein any element of conspiracy or the shadow of a case against the defendant Call. The only allegation against Call is that of the plaintiff Warshauer in his affidavit upon which the order of arrest was granted, “that the defendants have been very intimate together since deponent purchased said tickets, and that they are now in partnership together in the same line of business.” The utter insufficiency of this statement to warrant his arrest in this action needs no comment.

As to the defendant Webb, however, the cause of action is positively sworn to, and the affidavits presented upon the motion are conflicting as to whether or not he made representations to the plaintiff knowing at the time that they were false and untrue, with the design to cheat and defraud the plaintiff.

The ground of arrest being identical with the cause of action, and the motion to vacate the order having been made upon the affidavits, as regards the defendant Webb the administration of justice simply requires an examination pro. and con. for the purpose of ascertaining whether the order was providentially or improvidentially granted, and considering the order upon its merits whether it should be vacated. Sniffen v. Parker, 21 Weekly Dig., 444.

In the judicial consideration of the proof presented, with a due regard to the importance of the liberty of the citizen, as compared with that of the preservation or security of property, add applying the salutary rule that the presumptions of the law are in favor of the innocence of the person accused (Morris et al. v Talcott 96 N. Y , 107 ), the testimony before us leaves an affirmative impression that the charge made against the defendant Webb was established by a reasonably fair preponderance of proof (Brittingham v. Brittingham, 16 Weekly Dig., 120 ; Campbell v Clark, 16 id., 508), and therefore that, as to him, the order should not be disturbed*

As to the defendant Webb the order appealed from will be affirmed ; as to the defendant Call the said order will be reversed, and 'the order of arrest herein, in so far as it affects him, will be vacated, without costs.

MoA dam and Browee, JJ,, concur.