Shidlovsky v. Cashman

20 Misc. 404, 45 N.Y.S. 1041

Opinion

O’Dwyer, J.

The application for the order of arrest was made under subdivision 4 of section 549 of the Code of Civil Procedure, and no complaint or any affidavit setting forth, what the allegations of tho complaint were was presented upon the application and none exist so far as we are advised by this record.

An order of arrest under the subdivision of the Code and section of the Code referred to cannot be granted before the existence of a complaint, inasmuch as. the Code prescribes the remedy only in cases “ where it is alleged in the complaint that the defendant was guilty of fraud,” and it is difficult to see how the court can learn what is alleged in the complaint when there is no complaint. Sraus v. Kreis, 6 Civ. Pro. 77; Englehardt Co. v. Benjamin, 2 App. Div. 92.

The order appealed from should be reversed, with costs, and the motion granted, with costs.

Conlan and Schuchman, JJ., concur.

Order reversed, with costs, and motion granted, with costs.