Hecht v. Levy

Barrett, J. : The amendments of 1879 of sections 549, 550, 557 and 558 of the New Code were undoubtedly in view of the decision in the Bowery National Bank v. Duryee (74 N. Y., 491). It is now quite clear, under these amendments, that where the defendant has been guilty of fraud in contracting or incurring a liability, it must be so alleged in the complaint, and if not so alleged, the order of arrest must be vacated. These amendments were in full force when the action was commenced and the plaintiff should have been governed thereby. It is true that he obtained his order of arrest long before the passage of the amendments, but the defendant’s rights cannot be affected by that incident. Those rights depend upon the legal status when the hand of the law was laid upon him. Further, the affidavit is entirely defective. The demand is a stale one, accounted for, it is true, by the absence of the defendant. The goods were sold as far back as 1869, and the plaintiff says he then “ learned” of the falsity of the representations. His informant’s name is not given, nor any reason why an affidavit was not procured. The statement that the defendant was insolvent, and knew himself to be insolvent, would have been well [55] enough in a complaint. It is an averment of fact, unsupported by evidence, and in the present connection has reference plainly to what the plaintiff had “ learned.” The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs. Davis, 'P. J., and Beady, J., concurred. Order reversed, with ten dollars costs and disbursements; motion granted, with ten dollars costs.