Henry Clarke, Appellant, v. Julius Lourie, Respondent

Henry Clarke, Appellant, v. Julius Lourie, Respondent. An order of arrest is a provisional remedy which the court may grant or refuse in a proper case within its discretion, and the exercise of this discretion is not reviewable here. No appeal lies, therefore, to this court, from an order vacating an order of arrest, when upon any view of the facts the decision can be upheld. Unless the contrary appears in the order, it must be assumed that it was made in the exercise of such discretion. The opinion of the court below cannot be resorted to for the purpose of determining the ground on which it was based. (Submitted November 9, 1880 ; decided November 16, 1880.) Appeal from order of the General Term of the Supreme Court, in the first judicial department, affirming an order of Special Term vacating an order of arrest. Theron G. Strong for appellant. Joseph A. Shoudy for respondent. An appeal does not lie to this court from an order of the General Term, affirming an order of the Special Term vacating an order of arrest. (Townsend v. Nebenzahl, 10 Weekly Dig. 398; Liddell v. Paton, 67 N. Y. 393.) The order of arrest, like a warrant of attachment, is a provisional remedy, which it is within the discretion of the court of original jurisdiction to either grant or withhold in a proper case. The exercise of such discretion is not reviewable in this court. (Allen v. Meyer, 73 N. Y. 1; Whittaker v. Imperial S. M. Co., 78 id. 621.) The opinion of the court cannot be resorted to'for the purpose of ascertaining the ground of the decision or the reasons therefor. (Fisher v. Gould, 10 Weekly Dig. 259 ; Hewlett v. Wood, 67 N. Y. 394; Snebley v. Connor, 78 id. 218; Townsend v. Nebenzahl, supra.) [MAJORITY — Per Curiam.] Per Curiam. Eo appeal lies from an order of the General Term affirming an order of the Special Term vacating an order of arrest where, upon any view of the facts, such decision can be upheld. An order of arrest is a provisional remedy which the court may grant or refuse in a proper case within its discretion. The exercise of such discretion is not the subject of review in this court. (Liddell v. Paton, 67 N. Y. 393 ; Allen v. Meyer, 73 id. 1; Whitaker v. Imp. S. M. Co., 78 id. 621.) The order appealed from states no ground for the decision, and the opinion of the court cannot be resorted to for the purpose of determining the reasons upon which it is based. Unless the contrary appears, it must necessarily be assumed that the order in question was made in the exercise of the discretion of the court which granted it. (Hewlett v. Wood, 67 N. Y. 394; Snebley v. Conner, 78 id. 218.) For the reasons stated the appeal must be dismissed. All concur. Appeal dismissed.