Carrigan v. Washburn — 26 N.Y. St. Rep. 931

Majority

p. 931

George Carrigan, App’lt, v. Henry L. Washburn, Impl’d, Resp’t.^[1]

(City Court of New York, General Term,

Filed October 31, 1889.)

Headnote

Execution against person — Mat issue, although order op arrest was VACATED WHEN PLEADINGS ARE AMENDED SO AS TO CHARGE A TORT.

An order of arrest was issued in an action on contract, but was vacated. The pleadings were afterwards amended by alleging fraud and deceit. Held, that the action was thereby changed into one for tort, and that an. execution against the person, issued upon the judgment rendered therein, was not void, notwithstanding the vacating of the order of arrest.

Appeal from order vacating execution issued against the defendant’s person.

Harrison & Langdon, for app’lt; W. L. Van Derzee, for resp’t.

If the court below had contented itself with passing on the question whether a supersedeas should have been allowed, and the defendant discharged from arrest, there might have been sufficient in the affidavits to have upheld his order, the parties being in conflict as to the cause of the delay in issuing final process, but the court did not do this. It went upon other grounds, and held that the final process was void ah initia.

This action was commenced upon contract, an order of arrest was issued, which' was subsequently vacated. This would have prevented an arrest upon final process if the record had remained the same, but it did not.

The plaintiff moved for and obtained leave to amend his complaint by changing the action from contract into tort, by alleging fraud and deceit, and in this form of action, after issue joined and a trial on the merits, the plaintiff recovered a judgment against the defendant, and with it acquired the right to arrest the defendant, independently of the question whether an order of arrest had issued in the action or not. Roeber v. Dawson, 15 Civ. Pro., 417; see 122; 21 N. Y. State Rep., 160. The amended pleadings superseded the originals, which for all practical purposes ceased to form part of the record. The amended pleadings, when interposed, became the only pleadings in the case for all subsequent purposes. The dishonored notes of the defendant did not pay the judgment or change its character.

An unperformed and broken promise pays nothing, changes nothing. See Haggerty v. Simpson, 1 E.

p. 932

The execution against the person was not void ab initia or otherwise. It follows that the order appealed from must be reversed with costs, on payment of which the defendant will be permitted to renew his application for a supersedeas, to the end that the special term judge may pass on the conflict in the evidence as to the loches imputed to the plaintiff, and to the truth and sufficiency of the excuse offered for the delay in issuing the execution against the person.

McAdam, Ch. J., Ehrlich and Holme, JJ., concur.