Ewart v. Schwartz
The Superior Court of New York City
Appeal by plaintiff from order granting motion, made by defendant to set aside an order of arrest. The plaintiff had begun an action in the common pleas, in contract, for the same cause of action relied on in this action. A Stilwell warrant was issued and executed in the common pleas. The defendant afterwards filed a petition in bankruptcy.
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Appeal by plaintiff from order granting motion, made by defendant to set aside an order of arrest. The plaintiff had begun an action in the common pleas, in contract, for the same cause of action relied on in this action. A Stilwell warrant was issued and executed in the common pleas. The defendant afterwards filed a petition in bankruptcy. Thereupon the plaintiff consented to the entry of an order setting aside the Stilwell warrant and the proceedings connected with it, and also discontinued the action in the common pleas. At the time of filing the petition in bankruptcy, the court in…
1Opinion of the Court
By the Court.—Sedgwick, Ch. J.
The present action is upon contract and not in tort. The statements in the complaint that' allege that the defendant was guilty of a fraud in contracting, or incurring the liability, did not change the nature of the cause of action. They were made under subdivision 4 of section 549 of the Code Civ. Proc., that the plaintiff might be justified in procuring defendant’s arrest. That section specifically provides for such allegations in an action upon contract. There is, therefore, no question as to whether, after the plaintiff made proof in the bankruptcy pro*393ceedings…
2Cases cited7 opinions
- New Lamp Chimney Co. v. Ansonia Brass & Copper Co.Supreme Court of the United States · 1876
- Shellington v. . HowlandNew York Court of Appeals · 1873
- Ansonia Brass & Copper Co. v. New Lamp-Chimney Co.New York Court of Appeals · 1873
- Argall v. . JacobsNew York Court of Appeals · 1881
- People of the State of N.Y. v. . TweedNew York Court of Appeals · 1875
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