NEW HAVEN WEB COMPANY v. FERRIS

NEW HAVEN WEB COMPANY v. FERRIS. N. Y. Common Pleas, General Term; April, 1889. Arrest; motion to vacate after judgment.] Under Code Civ. Pro. § 558, which provides that “ at any time after the filing or service of the complaint the order of arrest [granted before complaint] must be vacated if the complaint fails to set forth what is required,”—such a motion may be made after judgment. Where the complaint was not served, and was first filed on entering judgment,—held error to refuse to vacate. Appeal from orders denying motions to vacate orders of arrest. Two actions were begun against the defendant, Francis J. C. Ferris, (1) by The New Haven Web Company and (2) by the Armstrong Manufacturing Company and the defendant was arrested in both actions. The questions involved in each case were identical. Upon the denial of the motions to vacate the orders of arrest the defendant appealed to the general term. The further facts appear sufficiently in the opinion. Andrew Gilhooly, for the appellant, cited Dibble v. Hathaway, 11 Hun, 571, 575 ; Rowe v. Patterson, 48 Super. Ct. (J. & S.) 249 ; Elwood v. Gardner, 45 N. Y. 349, 355 ; Hathaway v. Johnson, 55 Id. 93; Genesee Bank v. Mead, 18 Hun, 303 ; Hakes v. Peck, 30 How. Pr. 104 ; Beebee v. Griffing, 14 N. Y. 235, 243. FranMin Bien, for the respondents, cited Mills v. Rodewald, 13 Hun, 439. For the mode of amending to supply the defect, see 2 Abb. New Pr. & Forms, 360, 382. See also Ensign v. Nelson, 21 Abb. N. C. 321, which ease was affirmed by the court of appeals, February, 1889, but no opinion was rendered. [MAJORITY — Van Hoesen, J.] Van Hoesen, J. The plaintiffs charged the defendant with having disposed of his property with intent to defraud his creditors, and on May 29, 1888, the defendant was, on their application, arrested. The complaints were not served. On June 19, twenty-one days afterwards, the plaintiffs éntered their judgments upon complaints that did not contain any allegations that the defendant had fraudulently disposed of his property, but contained only an ordinary averment of sale and delivery of goods to the defendant. As the defendant was arrested more than twenty days before the entry of the final judgment, and as before making the motion to vacate the order of arrest, the defendant had been under arrest more than twenty days, the plaintiffs insist that the defendant is precluded, by section 567, from moving to vacate the order of arrest. It is plain that section 567 does not apply to this case. The ground of the defendant’s motion was not exposed to view until after judgment had been éntered, and then he had been in custody for more than twenty days. It was not until final judgment had been entered, which was at least twenty-one days after his arrest, that the defendant discovered that the complaints, which had never been served at all, and which had not previously been filed, failed to contain what section 549, subdivision 4, imperatively requires, “ that they shall contain, namely, allegations that defendant had disposed of his property with intent to defraud his creditors.” It would be a mockery to provide that the defendant may not take advantage of an objection, the existence of which he could not possibly detect until the time to make the objection had passed beyond recall. The defendant was not too late in his motion. Section 549 provides that there cannot be a recovery in an action in which a defendant is arrested for disposing of his property with intent to defraud his creditors, until the plaintiff alleges in his complaint and proves in his trial that the defendant had committed a fraud. If the complaint fails to contaim the necessary and requisite allegation the defendant may, under section 558, move at <my time to vacate the order of arrest. The plaintiff, for want of such an allegation, cannot recover in the action; and as he cannot recover, it would be idle' to hold the defendant to answer any judgment which might be recovered. As the action must needs fail, the order of arrest must fall. The plaintiffs had no right to enter judgments as they did in these cases, and they did not better their condition by their unwarranted proceedings. As they had arrested the defendant for disposing of his property with intent to defraud his creditors, they were bound, before they entered any judgment, to serve an amended complaint, in which the charge of fraudulently disposing of his property, should have been plainly made (§ 558). The motions to vacate the orders of arrest should be granted with costs. Daly and Allen, JJ., concurred