Steinhardt v. Beer — 42 N.Y. St. Rep. 10

Majority

p. 10

Emanuel Steinhardt et al., App’lts, v. Max Beer, Resp’t.

(New York Superior Court,

General Term,

Filed December 10, 1891.)

Headnote

Arrest—Fraud.

A failure to perform an agreement does not raise a presumption that the party intended non-performance at the time he made the agreement.

Appeal from order vacating an order of arrest.

Edward Jacobs, for app’lts ; David M. Newberger, for resp’t.

This is an appeal from an order vacating an order of arrest.

No facts are set forth in the papers upon which the order of arrest was granted that show the defendant to have been guilty of fraud.

It appears that he promised to do certain things in order to induce the plaintiffs to part with property. That he so promised with intent to deceive is not stated.

Because he failed to perform his agreement does not raise a presumption that he intended non-performance at the time he made the agreement; retroactive presumptions are not applicable to cases such as this.

The order appealed from should be affirmed, with ten dollars costs.

Sedgwick, Ch. J., concurs.