Hazlett v. Gill — 27 N.Y. Super. Ct. 627

Majority

p. 627

James Hazlett et al. plaintiffs, vs. James Gill, defendant.

Headnote

1. An order of arrest, in an action to recover damages for an alleged fraudulent represntation made by the defendant respecting the pecuniary responsibility of a firm, will not be vacated upon affidavits denying not the fraud complained of, but only an intention of the defendant to leave the state.

2. Such an action is one of those designated by the amendment of section 179 of the Code, in 1863, whereby a defendant may be arrested irrespective of his residence, or of an intention to leave the state.

3. It is no longer necessary, in actions brought to recover damages for fraud or deceit, to aver that the defendant is a non-resident, or is about to depart from the state. Upon proof merely of the fraud, the defendant may be arrested in the action.

(Before Mohell, J. at special term,

October, 1865.)

This action was brought to recover damages, for an alleged false and fraudulent representation, made by the defendant, respecting the pecuniary responsibility of the firm of Gill & Co. The defendant was not a member of the firm. Hpon affidavits alleging the making of the false representations, and that the defendant was about to leave the state, an order of arrest was

p. 628

granted, by one of the justices of this court, and the defendant was arrested and held to bail. A motion was made to vacate the order of arrest, on affidavits denying that the defendant was about or had any intention to leave the state, or to put himself beyond the reach of the process of the court.

A. B. JDyett, for the motion,

James M. Smith, opposed.

The sole ground relied upon in support of this motion is, that the alleged design of the defendant, to depart from the state, is sufficiently negatived by the moving affidavits. There is no denial of the fraud complained of, but merely a denial of any intention to leave the state.

The defendant’s counsel supposed that the order of arrest had been granted under the first subdivision of section 179 of the Code. Under that subdivision, in actions for the recovery of damages, on a cause of action hot arising out of contract, it must appear that the defendant is not a resident of the state or is about to depart therefrom. In a case similar to this, decided in this court in 1859, (Smith v. Corbierre, 3 Bosw. 634 ,) it was held that the order could not be granted unless one or other of those facts appeared. When that case was decided, a defendant could not be arrested for a fraud, except under the first subdivision of the 179th section, and then only upon proof of the non-residence or intended departure of the defendant from the state.

The legislature, in 1863, amended the 179 th section, by adding to the 4th subdivision the words, “ or, when the action is brought to recover damages for fraud or deceits This amendment virtually repealed that part of the first subdivision, relating to causes of action not arising out of contract, and designates a class of actions wherein a defendant may be arrested irrespective of his residence or of an intention to leave the state.

In this case the. fraud complained of, is the very gist of the

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action. The plaintiffs cannot recover, except upon establishing the falsity of the representations alleged to have been made ; and the recovery must be damages for the fraud. The plaintiffs’ action, therefore, is one of those designated in the amendment; for a false representation concerning the credit of another, by which a person is induced to part with his property, is a gross fraud and deceit.

It is now no longer necessary, in this class of actions, to aver that the defendant is a non-resident, or is about to depart from the state. Upon proof merely of the fraud, the defendant may be arrested in the action.

The motion must be denied, with $10 costs to abide the event, with leave, however, to review the motion on affidavits disproving the fraud.

Cases cited

Smith v. Corbiere 3 Bosw. 634 N.Y. Super. Ct. 1859-04-23 p. 628