Fuentes v. Mayorga

Joseph F. Daly, J. These appeals involve two questions : whether the motion to discharge the order of arrest was made within the time limited by section 204 of the Code, that is to say, before judgment; and, whether the defendants were liable to arrest upon the facts. The motion to discharge the order of arrest, which was granted, was made after verdict and before the entry of judgment in the action. I think it was made in time. Section 204 of the Code provides that a defendant may apply “ before judgment ” to vacate the order. Without entering largely into a discussion of the meaning of this term, it may be sufficient to observe that a verdict is not a judgment, and that a verdict may be had and yet no judgment entered upon it, and that a judgment is that “final determination ” (sec. 245) from.which an appeal may be taken, and which is evidenced by the formal entry by the clerk of the court. (Rae v. Harteau, N. Y. Com. Pleas, G. T. March, 1877—see ante, p. 95.) The defendants were not liable to arrest; they were commission merchants and received these goods to sell on commission; but this was not the case of a trust and confidence reposed in their integrity and fidelity rather than in their credit or ability, by the owner of the goods, and there was consequently no abuse of confidence aior breach of trust on their part. Without this feature of the relation between the factor and the principal there is no right to arrest. (Stoll v. King, 8 How. 298; McBurney v. Martin, 6 Robt. 502; Sultan v. DeCamp, 4 Abb. Pr. N. S. 484.) Defendants did not receive the consignment from the plaintiff, but from their partner, Huertemendia, who was the only person in whom the trust or confidence of plaintiff was placed, and [105] who did not receive the consignment from plaintiff as a member of defendant’s firm, but individually. The verdict in plaintiff’s favor was not conclusive against •defendants, who might be liable to account for the proceeds of the goods and yet not liable to arrest, as persons acting-in a “fiduciary ” character. The order should be affirmed, with $10 costs only, as both appeals were argued together on one set of papers. Chables P. Daly, Ch. J., and Labbemobe, J., concurred. Ordered accordingly.