Martin v. Gross — 22 N.Y. St. Rep. 439

Majority

p. 439

Thomas Martin, Resp’t, v. Theodore C. Gross, App’lt.

(New York Superior Court, General Term,

Filed March 5, 1889.)

Headnote

Arrest — Order op—When improperly granted — Sufficiency of affidavits—Code Civ. Pro., §§ 567, 568.

Where the affidavit on which an order of arrest was granted showed four causes of action, as to two of which the averments were all on information and "belief, and no reason was given why the persons who gave the information had not made affidavits of the facts within their knowledge, though plaintiff stated he had been unable to obtain the affidavits of those persons, Held, that the order of arrest was improperly granted as to those causes of action. As to all the causes of action, which are of the same kind, the plaintiff alleges that he and his assignors gave to the de

p. 440

íendant, a broker, certain sums of money as margin in the sale of oil; that defendant, on request, promised “to close said oil,” to settle liis. accounts and to return said margin, but did not, and converted the same. As plaintiff does not show that anything is due him from defendant, the. order of arrest should have been vacated.

Appeal from an order denying a motion made by defendant to vacate an order of arrest.

Benno Loewy, for app’lt; Frederick M. Evarts, for resp’t.

—The motion to vacate the order of arrest was made upon the papers upon which the order of arrest was granted.

The respondent claimed that the order should be affirmed, because it nowhere appears'that the defendant had been arrested, and cites section 567 of the Code of Civil Procedure, in support of his claim. The object of that section is to limit the time in which a person arrested shall make his motion to vacate the order of arrest, or to reduce the amount of bail, or to increase the security given by the plaintiff. Section 568 provides that an application to vacate an order of arrest may be founded only upon the papers upon Avhich it is granted. Now, where such an application is founded only upon the papers upon which the order of arrest was granted, it will not appear whether the defendant has or has not been arrested, and, to hold that the defendant cannot move to vacate an order of arrest, until after he has been arrested, would, in effect, nullify this provision of the Code. We are of the opinion that the power of the court to vacate an order of arrest, before the service thereof, is one of the inherent powers of the court to be exercised within the limitations prescribed by sections 567 and 568 of the Code of Civil Procedure.

The order of arrest was granted on affidavit without a. complaint. The affidavit shows four causes of action, three of which plaintiff holds by assignment. As to two of the causes of action, the averments are all on information and belief. .

We are of the opinion that the affidavits, as far as these two causes of action are concerned, did not warrant granting the order of arrest. No reason is given why the persons Avho gave plaintiff the information on which his affidavit was based have not made affidavits of the facts within their knowledge. Plaintiff could not prove his case at the trial by showing that he had received certain information that he believed, and there is no reason why he should be allowed an order of arrest on such information. No man should be arrested'civilly on mere information and belief. Mere information and belief is not proof or evidence in any legal sense. Roderigas v. East River Savings Institution, 76 N. Y., 323 . Or as was

p. 441

said in Mowy v. Sanborn ( 65 N. Y., 584 ): “It may, as a general rule, be safely affirmed that in the sense of the law, a general assertion of a fact in an affidavit upon information and belief proves nothing.”

When a plaintiff wishes to obtain an order of arrest on information that he has obtained from other persons, it at least is his duty to give some reason why he does not present affidavits from the persons who have given him his information. It is true that the plaintiff herein says that he has been unable to obtain the affidavits of the persons from whom he obtained his information, but he does not give a legal excuse for his failure to obtain such affidavits.

It thus appears that as to two of the causes of action set forth in plaintiff’s affidavit, the order of arrest was improperly granted, and for this reason the motion to vacate should have been granted. Madge v. Puig, 71 N. Y., 608 ; Am. Union Tel. Co. v. Middleton, 80 id., 408; Knight v. Abell, 15 N. Y. St. Rep., 989 .

The four causes of action set up in the moving papers are •of the same kind, viz.: The plaintiff alleges that he and his assignors gave to the defendant, who was a broker in stock, oil and gram, cercain sums of money as margin in the sale of oil; that the defendant was requested “to close said oil,” promised to do so, and also promised to settle his accounts and to return said margin, and that he has failed so to do, but has converted the same.

It evidently was the intention of the plaintiff to set forth a right to arrest within subdivision 3 of section 549 of the dode of Civil Procedure. But it is to be noticed that nowhere does the plaintiff allege in apt language that a certain sum is due him from defendant. It may well be that plaintiff and his assignors gave the defendant certain sums of money as margin on sale of oil, but it does not necessarily follow that any of the margin yet remains with the defendant to be returned to plaintiff.

The agreement between plaintiff and his assignors and the defendant was that defendant might use the money he received, as his own, and that he would pay whatever amount was due on demand (see McBurney v. Martin, 6 Robt., 502; Robbins v. Falconer, 43 Supr. Ct. R., 363), and as the plaintiff has not.shown by legal evidence that anything is due him, the order of arrest should have been vacated.

The order is reversed, with costs, and the order of arrest is vacated, with ten dollars costs.

Sedgwick, Oh. J., concurs.