McDonald v. Convis — 36 N.Y. St. Rep. 544

Majority

p. 544

Joseph H. McDonald, Resp’t, v. Charles E. Convis, App’lt.

(Supreme Court, General Term, First Department,

Filed January 16, 1891.)

Headnote

Arrest—When order will not be granted.

The action was brought to recover for moneys advanced to aid in the organization of a corporation, and expended in the conduct of its business.

p. 545

The affidavit for an order of arrest therein alleged that defendant, by false statements to the effect that the company was incorporated, induced plaintiff to be elected president thereof, to spend money in the conduct of its business and give his time and labor thereto. Held, that as to money expended prior to the time of the alleged organization plaintiff had no cause of action against defendant for fraud and deceit, and that as the complaint contained this cause óf action for which defendant could not be arrested, the order of arrest should be vacated.

Appeal from, order denying motion to vacate order of arrest.

Robert Sewell, for app’lt; James C. Foley, for resp’t

The ground upon which the defendant claims that this order of arrest should be vacated is that a cause of action is contained in the complaint not subjecting the defendant to arrest. The affidavit, which is supposed to contain the evidence upon which the plaintiff claims the right to arrest, contains allegations in respect to representations made by the defendant relating to the proposed organization of the company and the advance of money to aid in that organization. It also contained allegations that Don vis procured the certificate of association to be executed, which he undertook to have filed, and to have said association duly incorporated according to law; that Gonvis reported to the plaintiff that the association had been incorporated, and that thereupon a meeting of the directors was held and the plaintiff permitted himself to be elected president and treasurer of the association; that business was begun and for nearly a year was conducted by the association as though it was incorporated, the plaintiff in the meantime having advanced, paid and laid out sundry sums of money in the ■conduct of the business. The plaintiff then deposed that the alleged corporation had never been incorporated because the secretary of state refused to file the certificate, and that the plaintiff was compelled immediately to stop all business and close up the said association, whereby the plaintiff suffered pecuniary loss to a large amount besides loss of time, labor and good name and credit as a man of business. The affidavit further states that the defendant falsely and fraudulently, and with intent to deceive and defraud, stated that said corporation was incorporated, when in truth and in fact it was not, and he knew that it was not; and that by-reason of his false statements the plaintiff was led and induced to ■spend the money aforesaid, to give his time and labor, and, worse than all this, to lend his name for so long a time to an illegal enterprise.

It is clear that as to the moneys expended prior to the time of the alleged organization, the plaintiff has no cause of action against Gonvis fo*- fraud and deceit, as there is nothing contained in the affidavit tending to show that at that time the defendant had been guilty of any fraudulent representations.

It therefore appears that this action is brought to recover moneys for which the defendant could not. be arrested even if he might be arrested for the fraudulent representations in respect to the alleged incorporation of the association above mentioned.

Such being the case, the order of arrest must fail because the

p. 546

complaint contains claims as to which the defendant cannot be arrested.

The order should be reversed, with ten dollars costs and disbursements, and the order of arrest vacated.

Van Brunt, P. J., and Daniels, J., concur.