37 N.Y.S. 531 | N.Y. App. Div. | 1896
The question whether an application for an. order of arrest under subdivision 4, section 549,. Code of Civil Procedure, can be made before the- existence of a coinplaint in the action has been the subject of conflicting decisions. In Hall v. Conger (1 How. Pr. [N. S.] 88) it was held by the Special Term of the Supreme Court that a complaint was unnecessary. In Lawrence v. Foxwell (49 N. Y. Super. Ct. 278) the reverse rule, was declared. We agree with the latter decision. The Code gives the right to the remedy under this subdivision “ where it is alleged in the complaitit that the defendant was, guilty of a. fraud.” It is difficult to see .how the court can learn what is alleged in the complaint when there is no complaint. Justice Andrews, in Hall v. Conger, has, in our opinion, been misled by a consideration of the provisions of section 558, relative to vacating an order of arrest when the complaint filed fails to show a sufficient cause of action under section 549- He construed that section as contemplating that the complaint might not be issued or filed until after the order of arrest had been granted. But this provision of the section was in the Code as originally enacted, while subdivision 4 was not added' - to'section 549 till 1886. The provisions of section 558, therefore, cannot influence the construction to be given to subdivision 4 of section 549. "
The order appealed from should be affirméd, with ten dollars costs and disbursements.
Afl concurred.
Order affirmed, with ten dollars costs and disbursements.
