Levins v. Noble

By the Coubt.*—Barnard, J.—The facts stated in the affidavits on which the order of arrest was granted, show that the cause of action is for moneys received by defendant, in a fiduciary character. As there is no complaint among the appeal papers, we must assume that'the complaint, in its statement of the facts consti [477] tuting the cause of action, pursues the affidavit on which the order of arrest was granted. In this view, the facts constituting the cause of action, and the facts authorizing the arrest are identical. The rule in such cases is, that the order of arrest will not be discharged unless the defendant clearly makes out such a case as would call on the judge presiding at the trial to either nonsuit the plaintiff or direct a verdict for defendant. (Frost a. McCarger, 14 How. Pr., 131; Barret a. Gracie, 34 Barb., 20.) The defendant here has evidently not made out such a case. Indeed, after a careful examination of the papers, I have been unable to detect any preponderance of proof in favor of defendant. Order reversed, with ten dollars costs. Footnotes [*] Present, Ingraham, P. J., Barnard and Clerke, JJ.