Knight v. Abell — 55 N.Y. Sup. Ct. 605

Majority

p. 605

JACOB KNIGHT and Others, Appellants, v. JOHN H. ABELL, Respondent.

Headnote

Order of arrest — where one only, of several causes of action alleged in the complaint,. justifies it.

In this action, in which an order of arrest was granted, the complaint set out four • separate sales, as to one of which, only, there was sufficient evidence in the ■ papers to warrant a finding of fraud.

Held, that an order of arrest was properly vacated.

Easton v. Gassidy ( 21 Hun, 459 ) followed.

Appeal by the plaintiff from an order made at the New York Special Term vacating an order of arrest.

John U. Atkinson, for the appellants.

Charles A. O'Neill, for the respondent.

This order of arrest was granted in an action upon a contract for the purchase and sale of eggs and butter, where it was alleged in the complaint that the defendant was guilty of fraud in contracting or incurring the liability. (Code Civ. Pro., 549, sub. 4.) The complaint set out only one cause of action. Four separate sales were specified; one on July 13, one on July 18, and two on August 2, 1887. There was enough in the papers to warrant a finding of fraud as to the sales made on the second of August, but not sufficient. to warrant such a finding as to the prior, sales.

In Easton v. Cassidy ( 21 Hun, 459 ), there was but a single cause of action, which was founded, however, upon different demands. Some of these demands were of a character which would support an order of arrest, and others would not. This General Term held that the order of arrest was properly vacated. A different view

p. 606

seems to have been entertained in the Second Department in the case of Fitch v. McMahon (3 N. Y. State Rep., 147). That ease was subsequently affirmed in the Court of Appeals ( 103 N. Y., 690 ), but the decision there was placed upon different grounds from that of the General Term, and does not touch the questions involved in tin's appeal. Under these circumstances we must follow Faston v. Gassidy (supra), and affirm the order appealed from.

Order affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J. and Macomber, J., concurred.

. Order affirmed, with ten dollars costs and disbursements.