Griswold v. Sweet
New York Supreme Court
Motion to vacate the order of arrest in each of these actions. The actions were brought to recover damages against the defendant for obstructing a water-course, to plaintiffs’ injury, and for an injunction.
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Motion to vacate the order of arrest in each of these actions. The actions were brought to recover damages against the defendant for obstructing a water-course, to plaintiffs’ injury, and for an injunction. They were commenced and were put at issue by the service of an answer in each case in 1870. Subsequently, they were, by consent of parties, referred to a referee, to hear and determine; and several hearings were had before the referee, and many witnesses were examined before him by both parties. In this condition of the actions, and on the 17th April, 1875, application was made by the…
1Opinion of the CourtBockes, J.
I. Let it be admitted that the decision of this motion depends solely on the question of fact — that is, whether the plaintiffs have a right of action on facts to be established by proof— and the motion must fail. The actions cannot be heard and disposed of on the merits on a motion to vacate the orders of arrest. In a case where the complaint discloses a cause of action, supported by affidavits, for which cause the defendant might be arrested, and the proper officer has exercised a just discretion and granted the order, it must remain until the case is disposed of by trial and judgment;…
2Cases cited9 opinions
- Neilson v. LagowSupreme Court of the United States · 1851
- Barret v. GracieNew York Supreme Court · 1861
- Ely v. MumfordNew York Supreme Court · 1866
- Merritt v. CarpenterNew York Court of Appeals · 1866
- Nelson v. BlanchfieldNew York Supreme Court · 1869
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3Cited by3 opinions
- Newell v. WhitwellMontana Supreme Court · 1895
- Gelles v. RosenbaumNew York Supreme Court · 1931
- Kaeppler v. Red River Valley National BankNorth Dakota Supreme Court · 1899