Thomas S. Madge, Respondent, v. Victor Puig, Impleaded, etc., Appellant

Thomas S. Madge, Respondent, v. Victor Puig, Impleaded, etc., Appellant. "Where a plaintiff unites in his complaint two causes of action, one of which is bailable and the other not, he waives his right to bail as to both, and an order of arrest cannot be sustained. Madge v. Puig (12 Hun, 15), reversed. (Submitted December 4, 1877; decided December 11, 1877.) This was an appeal from an order of the General Term, affirming an order of the Special Term, which denied a motion to vacate an order of arrest. (Reported below, 12 Hun, 15.) The complaint set forth a contract between the . parties, by which defendant’s firm agreed to load twenty vessels, to be sent by plaintiff to Baracoa with fruit for New York,, to be sold by plaintiff on joint account, plaintiff to make certain advances thereon. The complaint set forth performance of the contract on the part of plaintiff, and various breaches thereof on the part of defendants. The complaint also set forth in a separate paragraph, numbered seven, which stated it to be “a fourth cause of action,” that plain tiff, in compliance with repeated and earnest requests oi defendants, sent ten vessels to procure cargoes of fruit from defendants, which they neglected and refused to load; that plaintiff thereupon procured cargoes and disposed of them on arrival at the best advantage’ and the loss thereon he claimed to recover as damages. By the contract, the loss of freight was agreed upon as the measure of damages for vessels not loaded. The order of arrest was granted upon affidavits stating that plaintiff was induced to enter into the contract and make the advances thereunder, by means of false representations on the part of defendant Puig, as to the responsibility of the firm composed of defendants; held, that as the cause of action set forth in the seventh paragraph was not connected with the contract or with the alleged fraud, and was a cause of action upon which defendants were not liable to arrest, the order could not be sustained. The court stated the rule as above, citing Smith v. Knapp (30 N. Y., 581); McGovern v. Payne (32 Barb., 83). Coudert Brothers, for appellant. Stephen H. Olin, for respondent. [MAJORITY — Allen, J.,] Allen, J., reads for reversal of order and granting motion vacating order of arrest. All concur.