ELY against STEIGLER

ELY against STEIGLER. Supreme Court, Seventh District; Special Term, May, 1870. Obdeb of Abbest.—Motion to Vacate.—Cause of Action.—Pbincifal and Incidental Relief. Lx an action, the main object of which is to have a contract rescinded and canceled, on the ground of fraud, damages for the fraud being also asked incidentally, an order of arrest cannot be granted. If there is one principal cause of action in a complaint, which will not justify an order of arrest, no arrest can be ordered in the action. Motion to vacate an order of arrest. This action was brought by Alfred Ely against John Steigler, Henry M. Lowenstein and another; and came now before the court on several motions, among them a motion to vacate an order of arrest, on complaint and answers. The action was brought to have a certain contract, for the sale and purchase of certain real estate in the city of New York, entered into by and between the plaintiff and defendant Steigler, rescinded and declared void by reason of the alleged fraud on the part of the defendants, by which the plaintiff was induced to enter into such contract. Also to restrain the further prosecution of a certain action in this court for the collection by the defendant Steigler of a certain due bill of five hundred dollars, given by the plaintiff to the said Steigler in part performance on his part of said contract, and to compel the said Steigler to surrender and deliver said due bill to the plaintiff. Also to recover back five hundred dollars, alleged to have been paid by plaintiff to the defendants in part performance by him - of said contract; and further, to recover such damages as the plaintiff has sustained from entering into such contract and partially performing the same, including the loss of anticipated profits. Samuel J. Crooks, for defendants. George T. Spencer, for plaintiff. [MAJORITY — Johnson, J.] Johnson, J. The order of arrest in this action was erroneously granted upon the cause of action stated in the complaint. The right to have the order vacated must depend, however, entirely upon the complaint, and can derive no aid from the defendant’s answers. The action is one of equitable cognizance, the main object of which is to have the contract rescinded and canceled, and the due bill redelivered to the plaintiff without payment, on the ground that they are vitiated, and voidable, by reason of the defendant’s fraud in the transaction. It is claimed on the part of the plaintiff that the order is maintainable under the last clause of subdivision 4 of section 179 of the Code, the action having been, in part at least, “ brought to recover damages for fraud or deceit.” . So far as the action sounds in damages for the deceit or fraud,- that part of the relief, if granted, would in a case like this be granted as incidental only to the main relief prayed for. The court, in granting the principal relief, would grant all the incidental also, for the purpose of determining and ending the entire controversy between the parties. The cause of action, to recover damages for the fraud or deceit, is not separately counted upon as a distinct and separate cause of action in the complaint. And even if it had been so counted upon, being joined in the same complaint with another cause of action upon which an order of arrest cannot be granted, such order cannot be sustained (McGovern v. Payne, 32 Barb., 83; Smith v. Knapp, 30 N. Y., 588, 589; Brown v. Treat, 1 Hill, 225; Suydam v. Smith, 7 Id., 182; Miller v. Scherder, 2 N. Y., 262.) It was not claimed on the part of the plaintiff, nor could it have been, that, had the action been solely to rescind the contract and reclaim the due bill, an order of arrest could have been rightfully granted. It is, in truth, such an action, and no other ; the title to the other relief being incidental only. But, if it may be regarded as otherwise, and an action for several distinct causes, not dependent upon each other, it is equally fatal to the validity of the order. If'there is one principal cause of action in the. complaint which, will not justify such an order, it must be vacated on the application of the party against whom it is made. The motion must, therefore, be granted with costs.