Evans v. Holmes

Countryman, J. As the cause of arrest is not identical with the cause of action, I must pass on the question of fact raised in the affidavits, and I have no hesitation in holding that the defendant made the representations as claimed by the plaintiffs. It was urged, however, that the original affidavit was fatally defective, because it contained only a general allega [517] tion of the falsity of the defendant’s representations. Doubtless, as a rule, the judge to whom the original application is made, should require a statement in detail of the evidentiary facts from which the existence of the principal fact sought to be established may be inferred or verified (Draper agt. Beers, 17 Abb., 163; Smith agt. Jones, 4 Robts., 657). But this is not indispensable, especially where, as in this case, the fact is positively averred, and it is not impossible that the affianthad personal knowledge of its truth (Cummings agt. Wooley, 16 Abb., 297, note; Ballonhey agt. Cadot, 3 Abb. [N. S.], 122). Even if the general averment was, in fact, made on information and belief, it does not necessarily follow that the order of arrest must be vacated. The courts have repeatedly refused to grant such applications, and have invariably done so where the motion was made on additional affidavits, unless the defendant expressly denied, under oath, the truth of the averment brought in question (Union Bank agt. Mott, 9 Abb., 106; Wolfe agt. Browner, 5 Robts., 602). It was held in all of these cases that the mere omission, under such circumstances, to deny the averment, would be regarded for all the purposes of the application as an admission of its truth (Union Bank agt. Mott, 9 Abb., 106; Wolfe agt. Browner, 5 Robts., 602; Ballonhey agt. Cadot, 3 Abb. [N. S.], 122). But it is not necessary in this case to invoke any technical rule against the defendant. The plaintiffs produced, in opposition to the motion, the affidavit of the cashier showing, beyond cavil, the falsity of the defendant’s representation that he had any money on deposit in the Scranton Savings Bank. The reception of this affidavit was strenuously resisted, on the ground that the defendant had not assailed the truths of this particular averment in his moving affidavits, but rested his objection as to this point solely on the insufficiency of the original affidavit. And it was, therefore, insisted that the plaintiffs were not at liberty to reinforce this point in their case with any new proof. The defendant [518] might, at the outset, it is true, have merely objected to the original papers as affording insufficient grounds of arrest, by moving solely on those papers to vacate the order, and thus have presented the naked legal question on undisputed averments of fact. But he preferred to assail the truth of some of the plaintiffs’ allegations by other affidavits, and thus raised issues of fact for the decision of the court. By pursuing this course he reopened the whole controversy on its merits, so far as the same was presented in the original affidavit, and submitted all those questions de novo upon all the papers. There is no limitation on the right of the plaintiffs to produce affidavits or proofs in addition to those on which the order of arrest was obtained, where the motion to vacate is made upon affidavits on the part of the defendant (Code, § 205), except that the plaintiffs cannot set up, as a defense to the motion, anew cause not originally alleged as a ground of the arrest (Cady, President, &c. agt. Edmonds, 12 How., 197). The defendant may elect whether he will informally demur to the plaintiffs’ case, set forth in the original affidavit, as insufficient in law to warrant the arrest, or raise issues of fact and proceed to an informal trial of the controversy on affidavits. But he cannot in legal effect pursue both methods at the same time, by selecting as the subject of denial and disputé such portions only of the plaintiffs’ case as he may deem most easily disproved, and thus debar them from strengthening other portions by incontestable evidence, which on the original proof, perhaps, could hardly be sustained. If the rule were otherwise the defendant by such an artifice might fail, as in this case, on all the issues he raised in his affidavits, and yet succeed in his application simply because the plaintiffs, from haste or inadvertence, or momentary inability to procure better evidence, had rested the allegation of a material fact, which the defendant could not, however, really dispute, on very doubtful or equivocal proof. Such a result would defeat the obvious policy of this provision of the Code, which was to reopen the whole case to both parties, [519] whenever the motion to vacate the order is made on new affidavits, and thus enable the court to determine the propriety of the arrest as an original question on all the papers. In this view all the cases cited on the argument may be harmonized. The case of Draper agt. Beers (17 Abb., 163) arose on a motion to vacate the order on the original papers, and the case of Smith agt. Jones (4 Robts., 657) was an ex parte application for the original order, which was denied. But in all the other cases cited, the question arose, as in this case, on a motion to set aside the order of arrest, on new affidavits. Hence, in these cases, the court, in weighing the evidence, laid stress on the omission of the defendant to deny the allegation in question, while controverting other allegations of fact, and held such omission, in connection with the allegation of the plaintiffs, to amount to an admission of the fact as alleged (Union Bank agt. Mott, 9 Abb., 106; Wolfe agt. Browner, 5 Robts., 602; Ballonhey agt. Cadot, 3 Abb. [N. S.), 122). The case of Martin agt. Vanderlip (3 How., 265) is not an authority for a different doctrine. In that case the plaintiff did not offer to read additional affidavits in opposition to the motion, and the order of arrest was sustained on the original affidavit as against the moving affidavit of the defendant. The question, therefore, as presented here could not have been raised, and does not appear to have been considered in that case. The affidavit of the bank cashier must be received and read, which establishes the fact in question beyond dispute, and the motion must be denied, with ten dollars costs.