Young v. Weeks
New York Court of Common Pleas
Appeal by the plaintiffs from an order of this court made at special term by Judge Van Hoesen, vacating an order of arrest. The affidavits upon which the order of arrest was obtained •charged that the defendant had obtained goods upon credit from the plaintiff by a fraudulent statement of his affairs.
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Appeal by the plaintiffs from an order of this court made at special term by Judge Van Hoesen, vacating an order of arrest. The affidavits upon which the order of arrest was obtained •charged that the defendant had obtained goods upon credit from the plaintiff by a fraudulent statement of his affairs. Annexed to the affidavits was a copy of the agreement under which the goods had been delivered, the material parts of which were as follows :— “ Whereas the said defendant proposes to engage in the purchase and sale of butter and other produce, at No. 179 Reade street, in the city of New York;…
1Opinion of the CourtJoseph F. Daly, J.
The judge at special term was justified in vacating the order of arrest. It was a second arrest of defendant for the same cause of action as the first arrest, upon papers presenting substantially the same defect as the papers in the first suit in the Supreme Court. Plaintiffs were bound to show that the second arrest was not vexatious, and if they fail to do so the court will infer it. (Archer v. Champneys, 3 Moore, 307, cited in People v. Tweed, 5 Hun, 382.) It may be that an honest mistake of a plaintiff in selecting his forum or his remedy in the first instance will not prejudice his right…
2Cited by2 opinions
- Flatow v. Von BremsenCity of New York Municipal Court · 1890
- Rothwell v. PaineNew York Court of Common Pleas · 1886