Evans v. Holmes
New York Supreme Court
Motion to set aside an order of arrest. Action to recover the price of goods sold and delivered to the defendant. At the time of commencing the action, the plaintiffs on an affidavit procured an order of arrest under subdivision 4 of section 179 of the Code, alleging that the defendant had been guilty of a fraud in contracting the debt.
Read the full summary
Motion to set aside an order of arrest. Action to recover the price of goods sold and delivered to the defendant. At the time of commencing the action, the plaintiffs on an affidavit procured an order of arrest under subdivision 4 of section 179 of the Code, alleging that the defendant had been guilty of a fraud in contracting the debt. The affidavit, among other things, averred that the credit was obtained upon a false and fradulent representation of the defendant, “ that he was worth between five and six thousand dollars over and above all debts and liabilities against him; and that there…
1Opinion of the CourtCountryman, J.
As the cause of arrest is not identical with the cause of action, I must pass on the question of fact raised in the affidavits, and I have no hesitation in holding that the defendant made the representations as claimed by the plaintiffs.
It was urged, however, that the original affidavit was fatally defective, because it contained only a general allega*517tion of the falsity of the defendant’s representations. Doubtless, as a rule, the judge to whom the original application is made, should require a statement in detail of the evidentiary facts from which the existence of the principal fact sought…
2Cases cited1 opinion
- Erwin v. ParhamSupreme Court of the United States · 1852
3Cited by3 opinions
- Mallary v. AllenCity of New York Municipal Court · 1884
- Flatow v. Von BremsenCity of New York Municipal Court · 1890
- Martin v. LynchNew York Court of Common Pleas · 1895