The New Haven Web Company, Appellant, v. Francis J. C. Ferris, Respondent

The New Haven Web Company, Appellant, v. Francis J. C. Ferris, Respondent. Under the provision of the Code of Civil Procedure authorizing the issuing of an order of arrest in an action on contract (Subd. 4, § 549), to sustain such an order the complaint must allege and the proof on trial show fraud inherent in the contract or attempted thereafter; the omission to allege fraud is an election on the part of plaintiff to waive or abandon it. Where, in such an action, the complaint contains no allegation of fraud and an order of arrest has been issued on affidavits, a motion to vacate the order may be made “ at any time after the filing or service of the complaint,”, under the provision of the Code (§ 558) directing the order to be vacated where the complaint fails to set forth fraud as required. (Argued January 12, 1891; decided January 20, 1891.) The provision of said Code (§ 567) limiting the time for moving to vacate an order of arrest, does not apply to such a case; the latter provision supplies a general rule, while the former governs an exceptional and specific case, and the two are not inconsistent. Appeal from order of the General Term of the Court of Common Pleas for the city and county of Hew York, made April 2, 1889, which reversed an order of Special Term denying a motion by defendant, under section 558 of the Code of Civil Procedure, to vacate an order of arrest, on the ground that the. complaint failed to set forth a sufficient' cause of action as required by section 519 of said Code. The facts are sufficiently stated in the opinion. Franklin Bien for appellant. The General Term of the Court of Common Pleas was without jurisdiction in making-the order. (N. H. W. Co. v. Ferris, 115 N. Y. 641.) The order was in violation of the Code of Civil Procedure. (Code Civ. Pro. § 567.) Daniel S. Remsen for respondent. By the express terms of section 558 of the Code of Civil Procedure a motion to vacate an order of arrest when made on the ground of the insufficiency of the complaint may be made “ at any time after the filing or service of the complaint.” (Lawrence v. Foxwell, 17 J. & S. 277; Laws of 1876, chap. 448.) Section 558 of the Code of Civil Procedure is not controlled by section 567. (G. R. Bank v. Mead, 18 Hun, 303; Hakes v. Peck, 30 How. Pr. 104; Beebee v. Griffing, 14 N. Y. 243, 244.) [MAJORITY — Finch, J.] Finch, J. It must be assumed that the order of arrest was granted in this case under the provisions of section 549 of the Code, which permit it to be made where- there was a fraud in the contracting of the debt, or in seeking to avoid it after it was contracted. The affidavits used on the application are not printed in the return, and all we know about them is the aq>parent concession on both sides that they alleged as ground of arrest a fraud effected by a transfer of the debtor’s property with an intent to cheat his creditors. Assuming that to be true, it follows that to sustain an order of arrest the complaint was required to allege, and the proof to show, the fraud inherent in the contract made, or attempted thereafter. But the complaint, when filed, proved to contain no such allegation and was simply a complaint on contract. Judgment was entered by default and, as a judgment, was entirely regular, (115 N. Y. 641), but left no basis for an arrest or an execution against the person. By the terms of section 558, a motion to vacate an order of arrest, if the complaint fails to set forth a sufficient cause of action as required by section 549, that is if it fails to allege-not only á debt but a fraud in contracting it <or trying to avoid it, may be made at any time after the filing or service of the complaint. The right -so to move goes upon the ground that by omitting to. allege the fraud and suing simply for a breach of contract, the creditor has elected to waive or abandon, for the • purposes of his judgment, the tortious element in his cause of action, or the fraud which followed it, and any consequent right of arrest which he may have had. But this provision the appellant claims is controlled and practically nullified by section 567, which authorizes generally a motion to vacate the order at any time before final judgment, or if the arrest was within twenty days before final judgment at any túne within twenty days after the arrest; arid he contends that since this motion was not made until seven months after final judgment it came too late, and there was no jurisdiction to grant it. We ought not, however, to treat the two sections as inconsistent, and- so, destructive, one of the other. They may very well stand together upon the construction that one supplies the general rule while the other governs an exceptional and specific case, so that ordinarily the time within which the motion to vacate should be made is determined by section 567, but with the exception of cases where the complaint is insufficient under the special provisions of section 549. Thus understood, collision and inconsistency are avoided and the different time limitations have each their own application. These views lead to an affirmance of the order of the General Term. The order should be affirmed, with costs. All concur. Order affirmed.