Hoboken Beef Co. v. Loeffel — 22 N.Y. St. Rep. 466

Majority

p. 466

The Hoboken Beef Company, Resp’t, v. Carl Loeffel, App’lt.

(Supreme Court, General Term, First Department,

Filed March 29, 1889.)

Headnote

Action—On contract—When order on arrest issues—Code Civ. Pro., § 549.

An order of arrest may issue in an action upon contract where the complaint alleges that the defendant was guilty of a fraud in incurrring the liability; and the action need not be to recover damages because of the fraud.

p. 467

Appeal from order denying motion to set aside order of arrest.

Hy Cooper, for app’lt; G. A. Heaney, for resp’t.

—The appellant in his points has stated, the ground of the motion to set aside the order of arrest obtained herein to be that the complaint states a cause of action on contract and does not allege fraud with damage.

In view of this statement of the ground upon which the appellant founds his motion it is not at all necessary to consider the allegations contained in the complaint because he concedes that if an order of arrest may be obtained in an action upon contract which does not allege fraud with damage, this appeal is not well taken.

It seems to us that a very brief consideration of section. 549 of the Code disposes of the objection. That section provides that the defendant may be arrested in an action brought for either of the following causes, and subdivision 4 is as follows:

In an action upon contract express or implied other than, a promise to marry where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability.

An order of arrest may issue therefore, in actions on contract where the cause of action is simply on contract; but in such cases, it is necessary that the complaint should contain something more, namely an allegation that in incurring the liability on the contract which was sued for, the defendant was guilty of a fraud. The action need not be to recover damages because of the fraud. If the defendant was guilty of fraud in incurring the liability on contract, which forms the subject of the action, and it is so alleged in the complaint, then the right to arrest follows.

In the case at bar, the complaint sets up a cause of action for goods sold and delivered, and it also contains allegations that in order to induce the plaintiff to make such sale, and with intent to defraud it of the goods so sold, the defendant falsely and fraudulently represented to the plaintiff that he owned certain real estate in the county of Hudson, in. the state of Hew Jersey, and that said real estate was free and unincumbered, and that the plaintiff relying upon said representations, and being deceived thereby, was induced to sell to the defendant the goods thereinbefore mentioned; that said representations were false and untrue, and known by defendant to be false and untrue; that the defendant did not own said real estate at the time of making the representations, nor did he own any other real estate in said county. These were complete and perfect allegations of fraud, and the fact that the complaint does not seek or allege damages by reason of the fraud, does not in anyway interfere with the right of arrest; because in an action

p. 468

upon contract, where the complaint alleges that the defendant was guilty of a fraud, in incurring the liability, an order of arrest may issue. These are the allegations in this complaint. The action is upon contract, and it is alleged that the defendant fraudulently, and for the purpose of deceiving the plaintiff, made certain allegations in regard to his responsibility, which were false. This clearly «constituted a fraud, and thereby brought the complaint within the provisions of the Code; and the order should be .affirmed, with ten dollars costs and disbursements.

Bartlett, J., concurs.