Lewis v. Pollack

Hatch, J.: ' •

.The original complaint in this action averred two separate and distinct causes of action, In the first the plaintiffs: aver that they are. dealers in diamonds and other precious stones, and that for several years they have been selling diamonds to the defendant, but have never allowed him a credit exceeding $2,000 ; that the defendant, came to plaintiffs and, for the purpose'of .securing more credit from them,' represented that his business was'constantly increasing; that he practically owed nothing, except what he. owed the plaintiffs ; that his debts had been constantly diminishing, and that to meet the demands of his increased business he needed to-make larger ■ purchases from them, and was, therefore, desirous of-having them give him a larger credit; that, relying upon the truth of such statements, plaintiffs did make other sales to defendant and gave him an additional credit of $2,859.22. The plaintiffs then aver that at, .the time the defendant made the representations of his solvency* as aforesaid, for the purpose of gaining such extended credit from them, he knew such representations were false and untrue, and that, in fact, at that time, he knew himself to be insolvent and heavily in debt’ to other persons, and that lie had no means of paying his-indebtedness; 'that, because of .the premises, plaintiffs have suffered damages in the sum of-$2,859.22. For a second and separate cause 'df action,'the complaint averred a cause of action upon a'promissofy note. Judgment was demanded for the sii'ms declared upon in both causes of action. Before the defendant had appeared in the action, the plaintiffs had obtained an order of arrest upon thecomplaint an'd the affidavits of one of the plaintiffs, and of their cashier áúd bookkeeper. The affidavits did not mention the second cause of action, biit set forth’ the. substance -of the first' cause mf action, and the further fact-that' shortly after defendant had obtained the addif tional ’credit, mentioned in' the said first cause of.action, he'went' into voluntary 'bankruptcy. The defendant demurred to tlie -'complainthupon.'the:‘ground that it did not state facts sufficient' to constitute a cause of action^ and that .there was. a misjoinder of causes of action. " Thereupon the. plaintiffs served- an-amended complaint, *579 wherein they set forth the facts constituting the first cause of action av.erred in the original complaint, and omitted any reference to the second cause of action. • This amended complaint was received and' retained by the defendant. ■ After its service the defendant made a' motion to vacate the order of arrest, and the motion was granted on' the ground that the original complaint upon which it was granted stated a cause of action in tort and one in contract, and, therefore,, an order of arrest was not authorized. From the order entered,, vacating the order of arrest, the plaintiffs have appealed.

It is not claimed, nor could it be successfully, that the facts averred in the first cause of action in the original complaint and-.' the" affidavits, upon which the order of arrest was granted, did not-' state a cause of action which Would authorize the issuance of such: order within the provisions of section 549 of the Code of Civil Pro-; dedure. The statements of fact contained in the papers used to' obtain the order of arrest are clearly sufficient to show a case within-the provisions of the above section. The only ground, therefore, upon: which the order, appealed from can be sustained is of the improper joinder of causes of action in such complaint. The Code of Civil. Procedure (§ 557) provides: f6 The order may be granted in a case: specified in section five hundred and forty-nine of this act," where it"f appears by the affidavit of the plaintiff, or any other person, that a: sufficient cause of action exists against the defendant, as prescribed.' in that section.” By the express terms of this enactment, it is not necessary that there should be any complaint at all in Order to authors ize the issuance of an order of arrest. :. All that is required is that an ", affidavit, or affidavits, shall be presented,"showing a case falling within.' the provisions of section 549. Compliance was had with both of these sections of the Code. The affidavits made out á complete case and the court was authorized to issue the order based upon such affidavits quite' irrespective, p'f. any complaint. Section 558 provides, among other-things, that .the-order of arrest: must be-vacated "on-, motion, if the complaint fails to set forth a sufficient cause of action, as required by section 549. These two sections, so far as concern the present question, contemplate that the order of arrest may be granted upon affidavits without a complaint, but when the complaint is served it must set forth a cause of action, showing the case to be within the provisions of section .549, otherwise the order will be vacated. *580 Primarily, however, no complaint is required. (New Haven Web Co. v. Ferris, 125 N. Y. 364 .) The defendant made no motion.to' vacate .the order of arrest after, the same was granted; but demurred' to the complaint. When this demurrer was interposed, tile-plaintiffs ■ bécarné entitled as matter of - right to amend their pleading without costs and without, prejudice to the proceedings already had„ (Code Civ. Proe. § 542.) The .plaintiffs herein availed themselves of such privilege, served their amended. complaint, and omitted th ref rom the second cause of-action .upon .the promissory note, and thus left. the action as one sounding- purely in. tort, the. gravamen of which was the fraudulent representations- by which the credit was procured, and this became the. sole issue which the defendant was required- to meet. . The service of such, pleading operated, in law to supersede the old pleading; and the; action was thereafter to be treated as though it had never been. (Penniman v. F. & W. Co., 133 N. Y. 442 .) When, therefore,-the defendant moved to vacate the order of arrest he was confronted with' affidavits which were, in every respect, sufficient;, and. upon which the order had been granted, and he .was. also, confronted with--a complaint which showed a.cause of action within-section 549-of the' Code, and the. papers as a whole showed- a strict, literal'compliance with the sections of the Code, of Civil. -Procedure authorizing an . order of arrest- to issue-. Why then should the order be vacated ? We are unable to answer, and being so unable, conclude that , the order vacating-the order of arrest should be reversed, with ten- dollars costs and disbursements; the motion to vacate, denied, with ten ■ dollars- costs and the order of ■ arrest be restored. . .....

. Van Brunt, P. J., Patterson, Ingraham and .Laughein, JJ., concurred.

Order vacating order of arresv. reversed; with ten 'dollars- costs and disbursements, and motion 'denied; with ten dollars costs and order of arrest restored.