37 N.Y.S. 849 | N.Y. App. Div. | 1896
This action, was begun in October, 1895. The complaint alleged substantially that on the 1st day of November, 1893, the plaintiff was the owner of certain goods of the value of $26,000, which were in the possession of the defendant as the factor and agent of the plaintiff, under an agreement by which he was to sell the goods and account to the plaintiff for the sales and pay over to him the proceeds, and that on the said 1st day of November, 1893, the defendant, being such factor as aforesaid, unlawfully and fraudulently-converted, misapplied and disposed of said property to his own use,, and that the plaintiff had frequently demanded the property, but. the defendant refused to deliver the same to him. •
The affidavit upon which this order was granted stated more in detail the same facts, and described the time when the conversion took place as the 1st day of November, 1893. The date is important. It further stated, however, that after the first day of November the plaintiff himself had sold a certain portion of the goods-to-the firm of Herzog Brothers. That Herzog Brothers gave a check-for the price of them to the defendant, and that the defendant on that day converted this check to his own use.
Upon these facts, made to appear somewhat more at large, the order • of arrest was granted. Upon the motion to vacate the order it was-made to appear that on the lltli day of November, 1893, the. plaintiff released the defendant from all claims which he had against him, and that the result of the settlement was that the defendant, was to sell certain goods of the plaintiff then in his possession, and to retain out of their proceeds the'sum of $5,000, which was due. from the plaintiff to him. It is fair to infer from the evidence that-the $4,000 of Herzog was a portion of the $5,000 which the defendant was entitled to retain.
Upon the affidavit showing these facts the motion to vacate was. made. The facts appearing by the moving affidavit were uncontradicted and unexplained, and they establish almost conclusively,, not only that the plaintiff had no cause of action against the defendant, upon which this order of arrest was issued, but that he knew he had. no cause of action and that his affidavit was utterly false and known to be so at the time he made it. The learned justice, however, who-decided the case, in spite of these facts, denied the motion to vacate.
The order denying the motion should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Van Brunt, P. J., Babrbtt, O’Bbibn and Ingeaham, JJ"., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars, costs.