McClure v. Levy — 52 N.Y. St. Rep. 568

Majority

p. 568

David McClure, Rec'r of The Life Union, Resp't, v Louis P. Levy, App'lt.

(Supreme Court, General Term, First Department,

Filed April 14, 1893.)

Headnote

Arrest—Vacation of.

Where the cause of arrest is identical with the cause of action an order of arrest s1 ould not he vacated unless it appears with reasonable certainty that the plaintiff cannot recover in the action.

p. 569

Appeal from an order denying defendant’s motion to vacate an order of arrest.

Browne & Sheehan (Isaac L. Egbert, of counsel), for app’lt; Herbert B. Turner, for resp’t.

In this action the cause of arrest is identical with the cause of action, and the order of arrest should not be vacated unless it appears with reasonable certainty that the plaintiff cannot recover in the action. From the facts before the special term it would appear that this defendant appropriated the funds of the company for the payment of notes of doubtful validity, which were not negotiable in their character, and the money was-paid out of a fund which was pledged to the certificate holders, and not to be applied to the general uses of the corporation. To entitle the plaintiff to recover in the action at all it is necessary to prove the allegations of the complaint, that the defendant wrongfully withdrew from the funds of the corporation the sum of $10,141.06 and embezzled and converted the same to his own use; and we think there was before the court evidence tending to sustain that allegation. The order should, therefore, be affirmed,, with ten dollars costs and disbursements.

Yan Brunt, P. J., and Ingraham, J., concur.