Knight v. Abell

1 N.Y.S. 288 | N.Y. Sup. Ct. | 1888

Bartlett, J.

This order of arrest was granted in an action upon a contract for the purchase and. sale of eggs and butter, where it was alleged in the complaint that the defendant was guilty of fraud,in contracting or incurring the liability. Code Civil Proc. § 549, subd. 4. The complaint set out only one cause of action. Pour separate sales were specified: one on July 13, one on July 18, and two on August 2, 1887. There was enough in the papers to-warrant a finding of fraud as to the sales made on the 2d of August, but not sufficient to warrant such a finding as to the prior sales. In Easton v. Cassidy, 21 Hun, 459, there was but a single cause of action, which was founded, however, upon different demands. Some of these demands were of a character which would support an order of arrest, and others would not. This general term held that the order of arrest was properly vacated. A different view seems to have been entertained, in the Second department, in the case of Fitch v. McMahon, 3 N. Y. St. Rep. 147. That case was subsequently affirmed in the court of appeals, (103 N. Y. 690, 9 N. E. Rep. 497;) but the decision there was placed upon different grounds from that of the general term, and does not touch the questions involved in this appeal. Under these circumstances, we must follow Easton v. Cassidy, supra, and affirm the order appealed from. Order affirmed, with $10 costs and disbursements.

Yan Brunt, P. J., and Macomber, J., concur.