Majority
p. 163Bowman, Thompson & Company, Limited, Resp’t, v. Joseph F. Fuerst et al., App’lts. (Supreme Court, General Term, First Department, Filed March 16, 1894.)
Headnote
Arrest — Vacation.An order denying a motion to vacate an arrest will not be disturbed on appeal, where both the right to maintain the action and the order of arrest depend on a question which can be satisfactorily established only on the trial.
Appeal from an order denying a motion to vacate an order of arrest.
I. M. Diitenhoefer, for app’lts ; James Dunne, for resp’t.
As the right to maintain this action and the order of arrest granted herein both depend upon the construction to be given to the agreement entered into between the parties to this action, and as this construction may depend upon the course of business of the parties under it, which course of business can only be satisfactorily established upon the trial, we think that upon this appeal we should not attempt such construction, and therefore affirm the order appealed from, with $10 costs and disbursements.