Shipman v. Shafer

14 Abb. Pr. 449

• Court: New York Supreme Court
• Decided: May 15, 1862
• Status: Published

Opinion

By the Court.—Leonard, J.

The first three objections to the validity of the order of arrest, raise only questions of regularity. As none of them are referred to in the papers upon which the motion is founded, they are not available here.

It is alleged, by the defendants, that a note was given to the plaintiff after the cause of action herein accrued, and that the demand thereby lost its fiduciary character.

The note as given is the obligation of the debtors only, and was not paid at maturity. It is not disputed that the plaintiff still holds it; and is able to make proferí of it at the trial.

In the absence of a special agreement, it is well settled that such a note does not extinguish the original demand. I am wholly unable to see that the plaintiff has received any consideration which can operate to change his rights in respect to the original demand.

It is also stated in the moving affidavits, that the defendants gave a check for this demand of the plaintiff, which was protested, and that the expense of the protest, amounting to 81 cents, is included in the sum for which the plaintiff has obtained his order of arrest, and for which he claims to recover here. If so, it is not stated as an independent cause of action. There is no attempt at the union of a cause of action for which the defendants are not subject to an arrest, with another for which such an order is authorized. The objection arises only from the plaintiff having claimed that there is more money in the defendants’ hands than the defendants are willing to acknowledge. The plaintiff and the defendants disagree as to the sum due for the proceeds of the property sold. If the plaintiff has claimed too much, the defendants can meet him at the trial and take their objections, where that question can be properly determined. It is no ground upon which to vacate the arrest.

The question is, also, within the principle, de minimis non eurat lew.

The order appealed from is affirmed, with costs.

Ingeaham and Bosekrans, JJ., concurred.