Faris v. Peck
The Superior Court of New York City
Appeal from an order. This action was brought by Henry L. Faris and another, appellants, against William H. Peck and Roderick F. Clow, to recover damages for a conspiracy to defraud the plaintiffs. An order to arrest the defendants was granted, which, upon motion, was discharged at special term. The plaintiffs appealed.
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Appeal from an order. This action was brought by Henry L. Faris and another, appellants, against William H. Peck and Roderick F. Clow, to recover damages for a conspiracy to defraud the plaintiffs. An order to arrest the defendants was granted, which, upon motion, was discharged at special term. The plaintiffs appealed. The facts disclosed by the affidavits upon which the order of arrest was granted, and others read on the motion, were as follows: On the formation of the American Merchants’ Union Express Company, one William H. Peck, whose residence was unknown to the company, but who resided…
1Opinion of the Court
By the Court.*—Monell, J.
The action in this case is one of the class in which the canse of action and the facts which authorize the arrest are the same. In such actions the court will not, ordinarily, try the merits upon a motion to vacate the arrest.
The true rule is, or should be, that if the original affidavits make out a prima facie case against the defendant, of a cause of action authorizing an arrest, the court will not set aside the order, except where the proof adduced by the defendant is so- clearly preponderating as to leave no reasonable doubt of his success upon the trial.
And…
2Cases cited2 opinions
- Graves v. . the American Exchange BankNew York Court of Appeals · 1858
- People v. KrummerSuperior Court of Buffalo · 1854