5 Daly 187 | New York Court of Common Pleas | 1874
The defendant David Joseph applied to set •aside orders of arrest granted against him in these six actions under. § 179 of the Code, for fraud by false pretenses in contracting the debts in suit, claiming, first, that the charge of fraud was groundless, and, second, that he had been brought into this State from the State of Ohio where he resided, as a criminal charged with such fraud upon his creditors upon an extradition warrant, after indictment obtained at the instance of his creditors, and with the sole view of subjecting him to the service of orders of arrest in the civil actions commenced against him; that he was accordingly brought to this city and lodged in prison until he was released on bail on or about the 7th day of January, 1870 ; that in the mean time orders of arrest in these and other actions had been procured and placed in the sheriff’s hands for service when he should be released from imprisonment on the criminal proceeding ; and that on such release he was immediately arrested at the suit of said George O. Hovey and others plaintiffs (No. 6), and also in two other •actions by plaintiffs not parties to this appeal, and taken to jail, where the orders of arrest were subsequently served on him in the other five actions above named. The various creditors upon whose complaints the indictments were procured, were none of them plaintiffs in any of these actions, but the defendant states that the indictments were procured to be found by William S. Dunn “ and the creditors generally of the said defendants in the city of New York including the plaintiffs in
It wras conceded upon the argument of these appeals that the defendant had not so far produced evidence in contradiction to the charges of fraud, as would warrant a reversal or vacation of the orders of arrest to be made because he had- shown himself innocent of the charge, but his discharge from those orders is claimed on the ground of complicity of these several plaintiffs in the extradition proceedings instituted in bad faith, and with a single view of bringing the defendant within the jurisdiction of this court, in order that the orders of arrest should be served on him in civil actions. A perusal of the affidavits on these appeals will fail to show by any satisfactory proof, that any of the plaintiffs in these several actions in any way participated in or connived at the indictment or extradition of the defendant, or did anything beyond availing themselves of his presence in this State after being so brought here at the instance and through the agency of other creditors, to serve process by order of arrest upon him.
I fail to discover from the papers submitted, any legal evidence of deceitful action by those other creditors in procuring defendant’s extradition. He has never been discharged from the indictments. He is merely discharged from imprisonment.
The fact that the order of arrest in the sixth suit brought by Hovey and others, was in the hands of the sheriff, a day or two before the defendant was released from the criminal charge (affidavit for and order of arrest, January 5th, 1870; returned, January 7th, 1870), as has already been stated, furnish no ground for maintaining a charge that they connived at the previous proceedings, under which defendant was brought into the State, in December, 1869. In the five other suits, the
Under these views, the order denying the motion to vacate the orders of arrest in the first five actions should be affirmed, and that discharging such order of arrest in the Hovey suit (No. 6) should be reversed.
Daly, Ch. J., and Larremore, J., concurred.
Order in first five cases affirmed; order in sixth case reversed.