Valentine v. Richardt — 24 N.Y. St. Rep. 697

Majority

p. 697

Ludlow W. Valentine, an Infant, etc., App’lt, v. Herman T. Richardt, Resp’t.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

Abbest—Obdeb oe—When gbanted—Code Civil Pbocedtjbe, § 549, sued. 4—Fbaud.

A defendant who wrongfully obtains property from another, contracts a debt, and where it is alleged in the complaint that the defendant was guilty of fraud in contracting or incurring the liability, an order of arrest may be granted in the action against him.

Cornell, Secor & Page, for app’lt; Donohue, Newcombe & Cardozo, for resp’t.

This is an action for the recovery of a judgment against the defendant for money and other personal property alleged to have been fraudulently obtained from the mother of the plaintiff by the defendant. It is true the complaint demands an accounting, but that prayer is unnecessary and immaterial, and the action is based upon the fraudulent obtainment of the money and personal property from the deceased woman. The claim has been assigned to the plaintiff by the administrators of the deceased, and he is in a position to maintain the action.

An order of arrest was granted against the defendant, which was subsequently vacated, and plaintiff has appealed from the last order.

If the defendant obtained, by fraud, from the mother of the plaintiff, upwards of §10,000 of personal property, the law immediately implied a promise on his part to account to her for the same, and at any time thereafter she could have maintained an action against him upon such implied contract for the recovery of the property. This rule is applicable to personal property as well as money.

The conclusion is thus easily reached that by implication of law the defendant contracted a debt when he wrongfully obtained the property from the deceased, and by subdivision four of section 549, a defendant may be arrested in an action upon contract express or implied * * * where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability. So that a simple allegation in a complaint that a defendant was guilty of a fraud in contracting or incurring the liability upon which the action is based is sufficient to justify an arrest in the action.

p. 698

The complaint in this action contains such a positive allegation, aud if it be requisite to establish a fraud in the procurement of the money and property by the defendant, such fraud is manifested by the facts which prove its obtainment. If it was received by the defendant from the deceased, the surrounding circumstances all conspire to prove its procurement by fraud.

Our conclusion is that the order of arrest was properly granted, and that the order vacating the same was erroneous and should be reversed, with ten dollars costs and disbursements.

Pratt, J., concurs; Barnard, P. J., not sitting.

It is the object of this action to impress a trust upon certain real property in favor of the plaintiff, and a receiver of the rents and profits of such property, has been appointed to collect the rents and pay certain interest upon mortgages resting upon the property, and also, to pay the taxes thereon and insure the property against fire.

The defendant has appealed from the order, but we find no merit in the appeal, and the order should be affirmed, with ten dollars costs and disbursements.