In re the Arbitration between Settineri & Jacobs

5 A.D.2d 885, 172 N.Y.S.2d 620, 1958 N.Y. App. Div. LEXIS 6537

Opinion

—Appeal from an order denying a motion to vacate a warrant of attachment. On June 22, 1956 respondent obtained, on his affidavit and a complaint containing four causes of action, the warrant against appellants on the ground that they were guilty of fraud in procuring a contract. Appellants moved to vacate the warrant on the grounds that the facts in support of the warrant were insufficient and that the complaint contained causes of action other than for a sum of money only. Order reversed, with $10 costs and disbursements, and motion to vacate the warrant granted, with $10 costs. In our opinion, the facts contained in the affidavit and complaint, upon which the warrant was granted, are insufficient. They fail to set forth facts showing, at least prima facie, that appellants have been “guilty of a fraud in contracting or incurring the liability” (Civ. Prac. Act, § 903, subd. 6). It would appear from this record that the fraud, if any, is with respect to the subsequent performance of the contract rather than in its inducement or in its inception. Such subsequent fraudulent conduct in relation to the performance of the contract cannot sustain the warrant of attachment on the ground upon which it was issued, namely, that appellants have been guilty of a fraud in contracting or incurring the liability (Novotny v. Kosloff, 214 N. Y. 12, 14).

Nolan, P. J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.