Witmark v. Herman
The Superior Court of New York City
Appeal from an order denying defendant’s motion to discharge the defendant Solomon Herman from arrest, and refusing him leave to renew such, motion. The action is brought to recover $459.30, the price and value of merchandise sold and delivered by plaintiff to defendants between February 7 and April 5, 1877, on a credit of sixty days.
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Appeal from an order denying defendant’s motion to discharge the defendant Solomon Herman from arrest, and refusing him leave to renew such, motion. The action is brought to recover $459.30, the price and value of merchandise sold and delivered by plaintiff to defendants between February 7 and April 5, 1877, on a credit of sixty days. Such sale was made and credit given, as the plaintiff alleges, in reliance upon false and fraudulent representations made by the defendant Solomon Herman as to the solvency and pecuniary resources of the defendants’ firm. Upon the verified complaint and the…
1Opinion of the Court
By the Court.—Sanford, J.
The facts stated in the complaint and in the affidavit of the plaintiff, upon which the order of arrest was granted, are, for the purposes of the present appeal, to be taken as true. If the affidavits upon which the defendants obtained their order to show cause controverted such facts, which does not appear from the record, the waiver and withdrawal of those 'affidavits is tantamount to an express admission of the allegations of the complaint and of the statements contained in the plaintiff’s affidavit (Hathorn v. Hall, 4 Abb. Pr. 227 ; Lowell v. Martin, 21 How. Pr.…
2Cases cited4 opinions
- Stitt v. . LittleNew York Court of Appeals · 1875
- Lovell v. MartinNew York Court of Common Pleas · 1861
- Sherman v. SmithNew York Supreme Court · 1871
- Hathorn v. HallNew York Supreme Court · 1857