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Martin v. Gross

56 N.Y. Super. Ct. 512 24 Jones & S. 512 Court N.Y. Super. Ct. Decision date 1889-03-05 English

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p. 512
THOMPSON MARTIN, Respondent v. THEODORE C. GROSS, Appellant.

Headnote

Order of arrest, vacation of same on the papers upon which it wets granted.
A motion to vacate an order of arrest may be made upon the papers upon which it was so granted, and when so made, whether the defendant has or has not been arrested. The power of the court to vacate an order of arrest, before the service thereof, is one of the inherent powers of the court to be exercised within the limitations prescribed by §§ 567 and 568 of the Code of Civil Procedure.
In this case the order of arrest was granted on affidavits, without a complaint being filed, and of the four causes of action appearing, three of them were held and owned by plaintiff as assignee, and in regard to two of the three, the averments in the affidavits were all made upon information and belief, and did not warrant the issue of the order of arrest. No man should be arrested civilly upon mere information and belief, for it is not proof or evidence in any legal sense. As a general rule it may be safely affirmed, that in the sense of the law, a general assertion of a fact upon information and belief, proves nothing. It appearing from the papers, that as to two of the causes of "action set forth in plaintiffs’ affidavits, the order of arrest was improperly granted. Held, that the motion to vacate the same should have been granted.
It appearing also, that the plaintiff does not allege in apt language that a certain sum is due to him from the defendant, Held that plaintiff not having shown by legal evidence that any sum is due or owing to him from defendant, the order of arrest should have been vacated.
Before Sedgwick, Ch. J., and Truax, J.
Decided March 5, 1889.
Appeal from an order denying a motion made by the defendant to vacate an order of arrest.
p. 513
Benno Loewy, attorney and of counsel for appellant, argued:—
I. It is a well' settled rule of law, that where in an action upon several causes of action an order of arrest is applied for, if the plaintiff fails to establish the right to arrest the defendant as to any one cause of action, the order of arrest must be vacated as a whole. Madge v. Puig, 71 N. Y. 608 ; Smith v. Knapp, 30 Ib. 531; McGovern v. Paine, 32 Barb. 83 .
II. The supposed” causes of action of Seth Wilks for $1,440, and Samuel E. Hunter for $570, are not established in a manner justifying the granting of an order of arrest. The terms of the receipt of the money by defendant are contained in a written instrument which is not annexed or produced, or even quoted from, the absence of which is unaccounted for, and as to the contents of which only the plaintiff’s conclusions—no facts —are given. The other allegations are all upon information and belief, and no valid reasons for the failure to procure the affidavits of the informants are produced. This is wholly insufficient to sustain any provisional remedy.
HI. Section 557 of the Code of Civil Procedure requires that in every case, before an order of arrest is granted, proof must be furnished to the court “ that a sufficient cause of- action exists against the defendant.”
The affidavits in this case contain nothing on which the court can ascertain that any cause of action exists against the defendant, and if so, what that cause of action is for, or whether it is founded on contract or is in tort. If the action is for a conversion, the affidavits should have stated that the defendant converted, either the money or the property in which the money deposited was to have been invested, and that thereby the plaintiff had suffered damages and the amount claimed as such damages, hut no such statements are contained in the affidavits upon which the order of arrest herein was granted. There is nothing in plaintiff’s affidavit to
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show what he sues for or what sum he seeks to recover in this action. Blewitt’s affidavit is presented, but riothing is before the court to show that his alleged claim forms one of the causes- of action in this suit. I have already analyzed so much of plaintiff’s affidavit as relates to the assigned claims of Wilks and Hunter. Plaintiff’s own alleged transactions amounted to only $290, of which $25 were “lost,” whatever that may mean, reducing plaintiff’s own claim to $265 out of $2,915.55 claimed in the order of arrest. How little there is warranting the granting of an order of arrest upon his own claim will be shown later.
IV. The plaintiff evidently applies for an order of arrest under subd. 3 of section 550 of the code of civil procedure on the ground that the defendant misapplied moneys received in a fiduciary capacity, but the allegations of the affidavits entirely fail to show that or any other ground of arrest. The plaintiff alleges “ that the defendant received from deponent, as broker for him, the sum of two hundred and ninety dollars as margin,” etc. The significance of the word “ margin ” and the relation of the parties to a deposit as margin, has been repeatedly passed upon, and fully determined by both the Court of Appeals and this court. Thus it was held by the Court of Appeals in Markham v. Jaudon, 41 N. Y. 235 : “ Where the defendants, stockbrokers, at the request of the plaintiff, and for him, but in their own names and with their own funds, purchased certain stocks, he depositing with them a ‘ margin ’ of ten per cent, which was to be ‘ kept good,’ and they 6 carrying ’ the stocks for him—that the legal relation created between the parties by this transaction was necessarily that of pledgor and pledgees, the stock purchased being, the property of the plaintiff and in effect pledged to the defendants as security for the repayment of the advances made by them in the purchase.” To the same effect see Baker v. Drake, 66 N. Y. 518 ; Capron v. Thompson, 86 Ib. 418.
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Y. The rule that a reasonably clear case must appear to authorize the granting of an order of arrest, applies, and the order should not be granted, where the propriety of granting it depends upon a doubtful and important question of law. Cormier v. Hawkins, 69 N. Y. 188 .
Frederick M. Hvarts, attorney and of counsel for respondent, argued:—
I. The motion to vacate the order of arrest being made solely upon the affidavits upon which the same was granted, the averments of fact contained therein and the fair inferences to be drawn therefrom must be deemed to be conceded as true. Philips v. Wortendylce, 31 Hun, 192 .
II. The facts stated constitute a fiduciary relation and authorize arrest though the money was as margin. See Clark v. Pinckney, 50 Barb. 226 ; Graeffe v. Currie, 52 Super. Ct. 554; Obregon v. De Mier, 52 How. 356 ; Dubois v. Thompson, 1 Daly, 309 ; S. C., 25 How. 417 ; Duguid v. Edwards, 50 Barb. 288 . It is not necessary to show specific moneys belonged to respondent and were wrongfully taken from him, the fiduciary relation is sufficient. Moore v. Hillabrand, 37 Hun, 491 .
III. Regarding the assigned claims of Wilks and Hunter though certain statements are upon information and belief, yet, the sources of the information are given, and the reason stated why the informant’s affidavit is not produced. This is sufficient and the allegations must be treated as true. Bassett v. Pitts, 15 Hun, 464 , 466 ; Wolfe v. Brouwer, 5 Rob't, 601; Rassleer v. Ashley, 2 Monthly Law Bulletin, 53 ; Evans v. Holmes, 46 How. 515 ; City Bank v. Lumley, 28 Ib. 397.
IY. If it be claimed the affidavits inferentially show some transaction at the time the money was received, then the appellant’s admissions equally show any such transaction was closed by him without orders, which
p. 516
likewise leads, to conversion while acting in a fiduciary capacity.
V. It was not necessary to state quantities and prices in the transactions, because all were closed and ended. With the facts as stated, and the conclusions therefrom, it would be superfluous to add the allegation of the legal conclusion in addition, of conversion and embezzlement in a fiduciary capacity.
’ VI. If for any reason any one claim is insufficiently or imperfectly stated, it does not follow the order of arrest must be vacated. The cases cited by appellant only apply where one cause of action giving arrest is joined with one which does not, both causes of action, however, being well pleaded or perfectly stated.
VII. It is a condition precedent to vacating the order of arrest that appellant had been arrested. Code, § 667; Gedney v. Hass, 50 How. 310 ; Kern v. Rackon, 44 Ib. 443. The record does not show an arrest made.

The motion to vacate the order of arrest was made upon the papers upon which the order of arrest was granted. The respondent claims that the order should be affirmed because it nowhere appears that the defendant had him arrested, and cites § 567 of the Code of Civil Procedure in support of his claim. The object of that section is to limit the time in which a person arrested shall make his motion to vacate the order of arrest, or to reduce the amount of bail, or to increase the security given by the plaintiff. Section 568 provides that an application to vacate an order of arrest may be founded only upon the papers upon which it is granted. Now, when such an application is founded only upon the papers upon which the order of arrest was granted, it will not appear whether the defendant has, or has not been arrested; and to hold that the defendant cannot move to vacate an order of arrest until after he has been arrested would, in. effect, nullify this provision of the Code. We

p. 517
are of the opinion that the power of the court to vacate an order of arrest, before the service thereof, is one of the inherent powers of the court, to be exercised within the limitations prescribed by sections 567 and 568 of the Code of Civil Procedure.

The order of arrest was granted on affidavits without a complaint. The affidavits show four causes of action, three of which plaintiff holds by assignment. As to two of the causes of action the averments are all on information and belief.

We are of the opinion that the affidavits, as far as these two causes of action are concerned, did not warrant granting the order of arrest. No reason is given why the persons who gave plaintiff the information on which his affidavit was based, have not made affidavits of the facts within their knowledge. Plaintiff could not prove his case at the trial by showing that he had received certain information that he believed, and there is no reason why he should be allowed an order of arrest on such information. No man should be arrested civilly, on mere information and belief. Mere information and belief is not proof or evidence in any legal sense (Roderigas v. East River Savings Bank, 76 N. Y. 323 ); or as was said in Mowry v. Sanborn, 65 N. Y. 584 , “It may as a general rule, be safely affirmed, that in the sense of the law, a general assertion of a fact in an affidavit upon information and belief, proves nothing.”

When a plaintiff wishes to obtain an order of arrest on information that he has obtained from other persons it is at least his duty to give some reason why he does not present affidavits from the persons who have given him his information. It is true that the plaintiff herein says that he has been unable to obtain the affidavits of the persons from whom he obtained his information, but he does not give a legal excuse for his failure to obtain such affidavits.

It thus appears that as to two of the causes of action set forth in plaintiff’s affidavit, the order of arrest was

p. 518
improperly granted, and for this reason the motion to vacate should have been granted. Madge v. Puig, 71 N. Y. 608 ; Am. Union Tel. Co. v. Middleton, 80 Ib. 408 ; Knight v. Abell, 15 N. Y. St. Rep. 989 .

The four causes of action set up in the moving papers are of the sam% kind, viz.: the plaintiff alleges that he and his assignors gave to the defendant, who was a broker in stock, oil and grain, certain sums of money as margin in the sale of oil; that the defendant was requested “ to close said oil ” ; that the defendant promised so to do, and also promised to settle his accounts and to return said margins, and that he has failed so to do, but has converted the same.

It evidently was the intention of the plaintiff to set forth a right to arrest within subd. 3 of § 550 of the Code of Civil Procedure. But it is to be noticed that nowhere does the plaintiff allege, in apt language, that a certain sum of money is due him from defendant. It may well be that plaintiff and his assignors gave the defendant certain sums of money as margin in the sale of oil, but it does not necessarily follow that any of the margin yet remains with the defendant to be returned to plaintiff.

The agreement between plaintiff and his assignors and the defendant, was that the defendant might use the money he received as his own and that he would pay whatever amount was due on demand (see McBurney v. Martin, 6 Robt. 502; Robbins v. Falconer, 43 Super. Ct. 363); and as the plaintiff has not shown by legal evidence that anything is due him, the order of arrest should have been vacated.

The order is reversed with costs, and the order of arrest is vacated with $10 costs.

Sedgwick, Ch. J., concurred.

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