EYPERT v. BOLENIUS

EYPERT v. BOLENIUS. N. Y. Supreme Court, First Department; Chambers, and Special Term, February, 1877. Arrest. Borrowing money by falsely representing that certain wholly worthless bonds delivered to the lender as security for the loan, are good, is a willful injury to property such as a female is liable to arrest for. An affidavit to obtain an order of arrest of a woman, which alleged the forgery and utterance of bonds by her on which she obtained money by falsely representing them genuine, throws the burden of proof on the defendant, and, in the absence of any explanation, will be sufficient to sustain an order of arrest granted thereon. Motion to vacate an order of arrest. The motion was based upon the summons, order of arrest, and the affidavit upon which it was granted. . This action was brought by Catharine Eypert against Nannette Bolenius, sued as Nannette Sperry, for the recovery of $1,045 alleged to have been fraudulently obtained by defendant from plaintiff. The plaintiff’s affidavit, on which the order of arrest was granted, after stating that the defendant, at the city of New York, on or about January 13, 1875, obtained from her $1,045 in money, alleged as follows “At said time and place the said defendant exhibited to deponent two documents, the originals of which will be exhibited to the justice to whom application will' be-made in this action for an order of arrest of the defendant, and produced on the trial of this action; said two documents purported to be and were then and there by the defendant represented and stated to be first mortgage bonds of the Leeds & Farmington Bailroad Company, State of Maine, for the sum, one of one thousand dollars and the other of five hundred dollars, the principal payable July 1, A. D. 1896, and the interest payable January 1 and July 1 of each year, the payment of the principal and coupons of the said bonds guaranteed by the Maine Central Bailroad Company in pursuance of a contract dated July 27, 1871, said guarantee being signed by James Cushing, treasurer of the said Maine Central Bailroad Company. “The said bonds were dated July 1, 1871, had attached to them .coupons for the payment, in the $1,000 bond, of thirty dollars January 1 and July 1 of every year until the principal became due, and in the bond of $500, of fifteen dollars upon said dates. “Said bonds purported to be signed by D. W. Clarke, treasurer, H. M. Payson, president, and Bensselaer Cram, George E. B. Jackson, and John W. Perkins, trustees. “At said time and place said defendant stated that said bonds were genuine and of the value they purported to be, asked this plaintiff to loan to her said one thousand and forty-five dollars for the payment of a judgment then pressing upon her, and stated to deponent that if deponent would advance said money and extricate her from her trouble arising out of said judgment she would deposit with this deponent said bonds and coupons, and that deponent should collect said coupons as they became due, and then and there delivered to this defendant said bonds arid coupons, and made, executed and delivered to this deponent an instrument of which the following is a copy, and the original of which this deponent is ready to produce: “ ‘New Yoek, January 31, 1875. “ ‘ I hereby authorize C. Eypert to keep certain bonds in safe keeping until I the undersigned have made a settlement with her in full. “ ‘Nannette Sperry.’ “And this deponent says that then and there said defendant also asked this deponent, as a further security, to take an assignment of the judgment to be paid by said moneys. “This deponent believed said representations of said defendant, and upon the faith of said belief advanced said one thousand and forty-five dollars, and received said bonds and authorization. “Said representations of said defendant were wholly false, said bonds were forgeries and counterfeits, and were uttered by said defendant falsely, fraudulently and feloniously. “The coupons thereto attached for $30 and $15, payable January 1, 1876, were by this deponent presented to said company for payment, and pronounced forgeries. “This deponent has made inquiries as to the character of the said defendant, and the answers to the inquiries are unfavorable, that her character is bad. The defendant within the past two years has represented herself to be Nannette Sperry, Nannette Eckhardt, and Mrs. Bolenius. “This deponent has in this court commenced an action for the recovery of said one thousand and forty-five dollars against the above named defendant by summons. No part of said money has ever been paid to her, although repeatedly by said defendant promised to be, and said defendant is now indebted to deponent for said amount with interest. “This deponent asks in this action that the said defendant may be arrested therein and dealt with according to law.” On this affidavit an order of arrest was granted on January 15, 1877, and the defendant was arrested thereunder January 29, and held to bail in the sum of $1,500. Defendant now moves to set aside the order of arrest. John E. Brodsky, for the motion. I. A female can only be arrested in an action for willful injury to person, character or property: this is not such an action (Code, § 179, subd. 5). II. In an action to recover a debt from a female, she is exempted from arrest by section 179, although she may have fraudulently contracted it (Wheeler v. Hartwell, 4 Bosw. 684). III. The affidavit on which the order of arrest was granted is defective. 1. It should set forth the particular representations made to induce the loan; the general allegation that they were false and fraudulent not enough (Draper v. Beers, 17 Abb. Pr. 163). 2. Proof of actual intent to defraud must be shown (Birchell v. Strauss, 28 Barb. 293 ; Claflin v. Frank, 8 Abb. Pr. 412; Smith v. Jones, 4 Robt. 655). 3. The source and nature of information derived from others should be particularly set out and the reason given why a positive statement cannot be procured (Whitlock v. Roth, 10 Barb. 78; Blason v. Bruno, 33 Id. 520; De Weerth v. Feldner, 16 Abb. Pr. 295). 4. It must be shown that the defendant knew the representions were false, and made them with intent to defraud (Smith v. Jones, supra; Marsh v. Falker, 40 N. Y. 562 and 575 n.). IV. A female is exempt from arrest in all cases except those enumerated when the injuries are attended with willfulness (Duncan v. Katen, 6 Hun, 1). Charles S. Spencer, opposed. The provision of the New Code of Civil Procedure is substantially the same on this point. § 553. See also Duncan v. Katen, 6 Hun, 1. [MAJORITY — Barrett, J.] Barrett, J. The defendant was not arrested for fraud in contracting a debt, but for damages on the case. The right to the use and enjoyment of the money was property; as well as the money itself. That right was not only willfully injured, it was willfully destroyed. The destruction consisted in the entire loss of the enjoyment, which was property. The willfulness consisted in the accomplishment of that destruction through the uttering of forged instruments. The allegation of forgery and of the utterance was sufficient to throw the burden on the defendant, and as no explanation is attempted, the motion must be denied with $10 costs. No appeal was taken.