Harland v. Howard — 32 N.Y. St. Rep. 872

Majority

p. 872

Robert Harland et al., Respt’s, v. Thomas Howard, App’lt.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

Arrest — Allegations oe complaint — Code Civ. Pro., § 549.

An order of arrest cannot, be granted in an action to recover moneys collected by an agent or factor, unless the complaint contains an allegation that such money was received by him in a fiduciary capacity.

Appeal from order denying motion to vacate order of arrest upon the papers upon which it was granted.

W. J. Gaynor, for app’lt; G. DeF. Lord, for resp’ts.

The ground upon which the order of arrést in this case was issued was undoubtedly because of the misappropriation by the defendant of money claimed to have been received in a fiduciary capacity.

The complaint does not contain the allegations required by § 549 of the Code, which are necessary to sustain an order of arrest. Bartlett v. Sutorius, 25 N. Y. State Rep., 629.

The order appealed from should be reversed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.