Stromberg v. Maister

34 Misc. 810, 68 N.Y.S. 392

• Court: City of New York Municipal Court
• Decided: February 15, 1901
• Status: Published

Opinion

Schuchman, J.

The cause of action and the ground of arrest are identical. The appellant contends, that in such a case, the order of arrest will not be vacated on motion, inasmuch as_ it involves the trial of the merits of the cause of action on affidavits. The rule, however, seems to be established, that an order of arrest may be vacated in the same manner in which it was obtained, that' is, on a motion based on affidavits, and that when a motion to vacate an order of arrest is made, although the right to arrest grows out of the cause of action, it is the duty of the court to examine the affidavits and to dispose of the case according to the just preponderance of the proof as contained therein. Corwin v. Freeland, 6 N. Y. 562; Levy v. Bernhard, 2 App. Div. 336. On the affidavits submitted on the motion, the preponderance seems to be in favor of defendant. The plaintiff’s right to try the merits of his cause of action before a judge and jury still remains, and, if successful, he is entitled to enforce judgment by execution against the defendant’s body. In cases of this kind, orders of arrest ought to be applied for in comparatively safe instances and granted with caution by the courts.

Order appealed from affirmed, with ten dollars costs and disbursements.

Oonlan and Me Garthv, JL, concur.

Order affirmed, with ten dollars costs.