
    Catherine M. Schwartz, Plaintiff, v. Edward B. Schwartz, Defendant.
    (Supreme Court, Erie Special Term,
    December, 1901.)
    Order of arrest — Permissible in action for a separation for cruel treatment — Code C. P., § 549, subd. 2.
    
    Am order of arrest may be granted in a wife’s action for a separation upon the ground of her husband’s cruel and inhuman treatment of her, as the action is one “ to recover damages for a personal injury ”
    within Code C. P., § 549, subd. 2.
    This is an action for a separation brought by the wife on the ground of cruel and inhuman treatment by the husband, An order of arrest was granted upon application of the plaintiff, Defendant was arrested and gave the required undertaking.
    Motion by defendant to vacate order of arrest.
    Clarence H. Beane, for plaintiff.
    George A. Davis, for defendant.
   Kenefick, J.

This is an action for a separation. The order of arrest was granted on the sole ground that the action is one to recover damages for a personal injury under section 549 of the Code of Civil Procedure. The basis of that section of the present Code is section 179 of the Code of Procedure. The language of section 549, relating to the right to arrest in actions for a personal injury, is substantially similar to the language used in section 179.

Under the last named section it was held in the case of Jamieson v. Jamieson, 11 Hun, 38, that an action for separation on the ground of cruel and inhuman treatment was an action for a personal injury and an order of arrest could be lawfully upheld therein.

If this were an open question I should be inclined to disagree with the reasoning of the court in the last named case, but I am constrained to follow the precedent established, and therefore the motion to vacate the order of arrest is denied, but the amount of the undertaking is reduced to $2,500.

Ordered accordingly.  