Majority
p. 677The Mathushek Piano Manufacturing Co., Resp't, v. James Pearce, App'lt. (Supreme Court, General Term, Second Department, Filed December 12, 1892.)
Headnote
Arrest—Motion to vacate.In an action for the conversion of moneys received on the sale of plaintiff’s goods on commission, an order of arrest was granted on the ground of fraudulent representations in procuring the contract for their sale. This was after the appearance of defendant in the action, but the papers did not show that it was granted without notice. Held, that a motion to set aside the order was properly denied.
Appeal from order denying motion to set aside an order of arrest.
J. H. Whitelegge (D. McMahon, of counsel), for app’lt;
J. W. •Alexander {J. F. Daly, of counsel), for resp’t.
This action was commenced on the 19th of April, 1892. The defendant appeared by attorney on the 20th of
p. 678
April, 1892, and demanded that copies of all papers in this action "be served on him. On the 14th of May, 1892, an order of arrest was signed by a judge of this court. The appeal papers do not show that the order of arrest was granted without notice to the defendant’s attorney. The affidavit upon which the application for the order was made was sworn to on the 1st of May, 1892, but the papers are silent as to the fact of notice being given upon the granting of the order.
The complaint states but a single cause of action. The facts stated are to the effect that the defendant, by false representation, procured a contract for the sale of plaintiff’s pianos. That defendant received, under the contract, large values and converted the proceeds to his own use. The gist of the action is the fraudulent procurement of the contract and thereby the possession of the property converted.
The order should be affirmed, with costs.
Pbatt, J., concurs; Dykman, J., not sitting.