Leach v. Linde

25 N.Y.S. 1042, 80 N.Y. Sup. Ct. 246, 57 N.Y. St. Rep. 132, 73 Hun 246

Opinion

PER CURIAM.

October 20, 1891, the plaintiffs recovered a judgment against the defendant in the superior court of Wake county, in the state of North Carolina, for $6,398 damages, caused by the false and fraudulent representations of the defendant. The judgment has not been reversed and remains wholly unpaid, and this action is for the recovery of the amount due on it. An order of arrest was granted, which the defendant moved to vacate on the papers on which it was granted, and so there was no dispute about the facts. In Baxter v. Drake, 22 Hun, 565, affirmed 85 N. Y. 502, an action was brought in the supreme court of this state on a judgment recovered in the United States circuit court for the eastern district of Tennessee, for damages occasioned by the conversion of property. An order of arrest was issued in the action, and it was held that, under section 552 of the Code of Civil Procedure,¹ it was properly granted. This section clearly authorizes an order of arrest in such a case. It is urged by the appellant’s counsel that Gutta Percha & Rubber Manuf’g Co. v. Mayor, etc., 46 Hun, 237, reversed 108 N. Y. 276, 15 N. E. Rep. 402, is in conflict with the case first cited. In that case it was held that a judgment recovered in another state, it not appearing whether it was founded on contract or in tort, was a “contract,” within the meaning of section 635 of the Code of Civil Procedure, which prescribes cases in which attachments may be issued. The question decided in the latter case is not germane to the one decided in the former, as the cases arose under different sections of the Code. The order should be affirmed, with $10 costs and disbursements.

1 Section 652 is as follows: “The recovery of judgment in a court, not of the state, for the same cause of action, [conversion of personal property, etc., as enumerated in section 549,] or where the action is founded upon fraud or deceit, for the price or value of the property obtained thereby-, does not affect the right of the plaintiff to arrest the defendant, as prescribed in this title.”