Squire v. Senia — 51 N.Y. St. Rep. 220

Majority

p. 220

Newton Squire, Resp’t, v. Benjamin B. Senia et al., App’lts.

(New York Common Pleas, General Term,

Filed February 6, 1893.)

Headnote

Arrest-'-Undertaking.

An order vacating an order of arrest issued in an action for conversion, which has become final hy lapse of time in which to appeal, is a final decision that the plaintiff in such action was not entitled to the order of arrest, notwithstanding that the action may result in a judgment in his favor, and the cause for arrest and the cause of action were identical.

Appeal from a judgment for plaintiff, entered upon a verdict directed by the court. Action to recover upon an undertaking given to obtain an order of arrest, pursuant to the provisions of § 559 of the Code of Civil Procedure.

William R. Wilder, for resp’t; T. D. Kenneson, for app’lts.

The facts, as they transpired on the trial of this action, are the same as in Squire v. McDonald et al., herewith decided, 50 St. Rep., 762 , and the question urged for review does not differ in any respect from the one there discussed.

We affirmed the judgment appealed from upon the ground that the order vacating the order of arrest issued against the plaintiff in an action against him for the alleged conversion of personal property, and which had become final by lapse of time within which an appeal therefrom should be taken, is a final decision that plaintiff in the action for conversion was not entitled to the order of arrest, notwithstanding that the action may result in a judgment for plaintiff, and that because of the identity of the cause for arrest with the cause of action such a judgment would imply that the plaintiff was entitled to an order of arrest.

The judgment herein appealed from must, therefore, likewise be affirmed, with costs.

Daly, Oh. J., and Pryor, J., concur.