Dadirrian v. Whitson

New York Supreme Court

Dadirrian v. Whitson

54 Misc. 54, 105 N.Y.S. 458

DecidedApril 15, 1907

StatusPublished

This text of 54 Misc. 54 (Dadirrian v. Whitson) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dadirrian v. Whitson, 54 Misc. 54, 105 N.Y.S. 458 (N.Y. Super. Ct. 1907).

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Opinion

Greenbaum, J.

The motion to vacate the order of arrest being based upon the original papers upon which the order of arrest was granted it is immaterial whether the defendant was arrested or not. Martin v. Gross, 56 N. Y. Super. Ct. 512; Staub v. Henry, 16 App. Div. 476. In the latter case the dissenting opinion indicates that the reason why the minority of the justices in that case did not vote to vacate the order of arrest was that the defendant had not been arrested under the process, and that the motion to vacate was 'premature. It is evident, however, that the majority of the court must have thought otherwise, even if they did not discuss the point, since the order was reversed. The affidavit upon which the order was founded seems to me to be insufficient to warrant its issuance. It expressly appears that the action is "brought against the defendant under a name which plaintiff asserts is fictitious, and that plaintiff knew his real [55]*55name. The affidavit is also insufficient in that it omits to state any facts from which the alleged cause of action arises. The order of arrest is vacated, hut, in view of the long delay in moving, without costs.

Order vacated, without costs.

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Greenbaum, J.

The motion to vacate the order of arrest being based upon the original papers upon which the order of arrest was granted it is immaterial whether the defendant was arrested or not. Martin v. Gross, 56 N. Y. Super. Ct. 512; Staub v. Henry, 16 App. Div. 476. In the latter case the dissenting opinion indicates that the reason why the minority of the justices in that case did not vote to vacate the order of arrest was that the defendant had not been arrested under the process, and that the motion to vacate was 'premature. It is evident, however, that the majority of the court must have thought otherwise, even if they did not discuss the point, since the order was reversed. The affidavit upon which the order was founded seems to me to be insufficient to warrant its issuance. It expressly appears that the action is "brought against the defendant under a name which plaintiff asserts is fictitious, and that plaintiff knew his real [55]*55name. The affidavit is also insufficient in that it omits to state any facts from which the alleged cause of action arises. The order of arrest is vacated, hut, in view of the long delay in moving, without costs.

Order vacated, without costs.

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54 Misc. 54, 105 N.Y.S. 458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dadirrian-v-whitson-nysupct-1907.

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