Kimball v. Flagg

8 N.Y.S. 469, 15 Daly 496, 29 N.Y. St. Rep. 490

Opinion

Bookstaver, J.

The appellant contends the court had no power to impose a condition on vacating the order of arrest on the plaintiff’s own papers. It may be conceded that when the order of arrest is vacated on plaintiff’s papers, where the "action is not one in which an order of arrest cannot be issued, or where it is made without authority in law, yet it does not follow such a condition may not be imposed in any case; as a matter of fact, it is often imposed where the court is satisfied that the arrest was without malice and upon probable cause. In the present case the learned judge who vacated the order and imposed the condition expressly says he did so on grounds purely technical but which he felt bound to observe, and the papers themselves show no malice was intended. We therefore think he was justified in imposing the condition, and that the order should be affirmed, with $10 costs.