Ely v. Steigler

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 The action is one of equitable cognizance, the main object of which is to have the contract rescinded and canceled, and the due bill redelivered to the plaintiff without payment, on the ground that they are vitiated, and voidable, by reason of the defendant’s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 [37] 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.