187 A.D. 219 | N.Y. App. Div. | 1919
This action is an action which comes under subdivision 2 of section 549 of the Code of Civil Procedure, to recover for moneys received by an agent in a fiduciary capacity. Such section provides that a defendant may be arrested where the action is brought for either of the following causes, and among those causes it is stated: “ Where it is alleged in the complaint that the-money was received * * * by an * * * agent * * * or other person in a fiduciary capacity.” The defendants moved to set aside the order of arrest and the Special Term has granted the motion on the ground that such an order could only be granted upon a complaint containing such an allegation. This holding, I think, was erroneous. By section 557 of the Code of Civil Procedure it is provided that an order may be granted in a case specified in section 549, where it appears by the affidavit of the plaintiff or any other person that a sufficient cause of action exists against the defendant as prescribed in that section. By section 558 it is provided that the order may be granted at any time after the commencement of the action. It may also be granted to accompany the summons, “ but at any time after the filing or service of the complaint, the order of arrest must be vacated on motion, if the complaint fails to set forth a sufficient cause of action, as required by section five hundred and forty-nine of this act, but where the order is applied for after the filing or service of the complaint, the court before granting the same may without notice direct the service of an amended complaint so as to conform to the allegations required in subdivisions two and four of section five hundred and forty-nine of this act.” When the Code was first enacted,
The trial court felt bound by the decision in Engeihardt Co. v. Benjamin (2 App. Div. 91). That decision has never since been cited in any of the superior courts and we are of opinion that it should not be followed.
It is further contended on behalf of the respondents, however,
The order vacating the order of arrest should, therefore, be reversed, with ten dollars costs and disbursements, and the motion to vacate denied, with ten dollars costs.
Clarke, P. J., Laughlin, Dowling and Shearn, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
See Laws of 1876, chap. 448, as amd. by Laws of 1877, chaps. 416, 422.— [Rep.