Elston v. Potter — 22 N.Y. Super. Ct. 636

Majority

p. 636

David D. Elston, Plaintiff and Appellant, v. William C. Potter, Defendant and Respondent.

Headnote

In an action to recover the possession of specific personal property, an order of arrest which recites that the cause of action is for a detainer or conversion, and requiring the Sheriff to hold the defendant to bail, in a specified sum, is unauthorized. In such an. action, the ground of arrest is a concealment, &c., of the property, and the order must require an undertaking to pay the amount which may be recovered.

(Before all the Justices.)

Heard, October 11, 1862;

decided, October 18, 1862.

Appeal from an order, made at Special Term, vacating an order of arrest theretofore granted in the action.

p. 637

The action was brought to recover the possession of a railroad bond, which plaintiff claimed to own, and alleged that defendant had converted. The plaintiff obtained, upon affidavit, an order for the arrest of the defendant, which order, omitting the formal parts, was as follows:

“ It having been made to appear to me by affidavit, that thé above named plaintiff has a sufficient cause of action against said defendant, for wrongfully detaining or converting personal property, and that said defendant has disposed of or concealed said personal property, with intent to deprive the plaintiff of the benefit thereof, and to prevent its being found and taken by said Sheriff. You are required forthwith to arrest William 0. Potter, the defendant in this action, for the cause aforesaid, and hold him to bail in the sum of fifteen hundred dollars, and to return this order,” &e.

The JuStice who granted the order, subsequently, on motion of the defendant, vacated it, and from the order entered upon this decision the plaintiff now appealed.

J. C. Dimmick, for plaintiff, appellant.

A. Prentice, for defendant, respondent.

The authority and direction to the Sheriff “ to hold the defendant to bail,” are contained and to be found only in the order of arrest. (§ 183, Code.) The order of arrest in this action states “ that the plaintiff has a sufficient cause of action against said defendant for wrongfully detaining or converting personal property,” &c. Under such an order the Sheriff could demand only such an undertaking as is required under subdivision 1 of section 179 of the Code, “ that the defendant shall at all times render himself amenable to the process of the Court,” &c. (§ 187.) Such an order of arrest was obtained in the action in the Supreme Court and voluntarily abandoned by the plaintiff. The counsel for the respective parties conceded, and it appears by the papers used upon this appeal, that this is an action “ to

p. 638

recover the possession of personal property, &c., and in such an action the order of arrest is granted upon the ground that the property is concealed, &c., by the defendant so that it cannot be found, and with the intent that it shall not be found and taken by the Sheriff, and requires the Sheriff to take from the defendant an undertaking to pay the amount which may be recovered against the defendant. (Sub. 3, § 179 and § 211, Code.)

The order of arrest was therefore properly discharged, and the order made at Special Term must be affirmed.