Bondy v. Collier

11 Misc. 443, 32 N.Y.S. 221, 65 N.Y. St. Rep. 419

Opinion

Ehrlich, Ch. J.

Tlie court- below directed, that the motion to vacate the-order of arrest- be granted unless the plaintiffs executed and filed a new undertaking as provided by the Code.

The proper undertaking having been filed, and the court having power to allow the defects in the original undertaking to be amended (Code, §; 730 ; Bellinger v. Gardner, 2 Abb. Pr. 441; Irwin v. Judd, 20 Hun, 562; Beach v. Southworth, 6 Barb. 173 ; Kissam v. Marshall, 10 Abb. Pr. 424; Marvin v. Marvin, 11 Abb. [N. S.] 97), the case on appeal stands practically as if the original undertaking- had been perfect in the first instance.

The affidavit on which the order of arrest was granted sets forth a-: good cause of action for goods sold, to the defendants on the- faith of representations which afterwards proved-to be untrue. The affidavit sufficiently establishes the. fraud and. the sources of' knowledge and information clearly appear therein.

It- follows that-the order appealed from must: be affirmed, with costs.

Fitzsimons and Newburger, JJ., concur.

Order affirmed, with costs.