Continental Bank v. De Mott — 21 N.Y. Super. Ct. 696

Majority

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The Continental Bank, Plaintiffs and Respondents, v. James S. De Mott, impleaded with William A. Timpson, Defendant and Appellant.

Headnote

An order of arrest, issued as a provisional remedy under the Code, may be made returnable within a specified period after the arrest of the defendant. It is not essential to name a day certain.

(Before Bosworth, Ch. J., and Woodruff, Moncrief, Robertson and White, J. J.)

Heard, November 23;

decided, November 30, 1861.

An appeal from an order made at Special Term, in June, 1861, denying the motion of the defendant De Mott, to discharge an order of arrest.

This action was brought by the plaintiffs, a Bank in the Oity of Hew York, against James S. De Mott and William A. Timpson.

The plaintiffs obtained from one of the Justices of the Court an order of arrest against the defendants.

The order of arrest, after stating the matters usually

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recited in such order, required the Sheriff “ forthwith to arrest said defendants, James S. De Mott and William A. Timpson, and hold each of them to bail in the sum of seven thousand dollars, and return the order to Barney, Butler and Parsons, plaintiff’s attorneys, at their office, Ho. Ill Broadway, Hew York, within five days after the arrest of said defendants.’’

The defendant De Mott having been arrested under this order, obtained an order to show cause why the order of arrest should not be vacated and set aside, or the bail be reduced.

The matters of fact stated in the affidavits are omitted, as they do not affect the question touching the form of the order.

The motion was heard at Special Term on the 20th of June, 1861, before Mr. Justice Woodruff, who denied it; and the defendant De Mott appealed to the Court at General Term.

I. T. Williams, for defendant, (appellant,) insisted that the order of arrest was void in not naming a day certain as the return day thereof; and after argument thereupon, submitted the question upon the merits, without discussing the statements made in the several affidavits used upon the motion.

G. W. Parsons, for plaintiffs, (respondents,) claimed that the order was in a form somewhat generally used, and in any event was amendable.

An order of arrest which directs the Sheriff “forthwith to arrest the defendants (and hold them to bail in a specified sum,) and to return the order to Barney, Butler & Parsons, plaintiffs’ Attorneys, at then office, Ho. Ill Broadway, Hew York, within five days after the arrest of said defendants,’’ satisfies the requirements of section 183 of the Code.

Upon the merits, I think it is abundantly shown that the transaction in question was “the unlawful neglect and

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refusal of the defendants to pay over and account for moneys received by them in the course of their employment as brokers.

The order made at Special Term must be affirmed.