
    JANANIQUE against DE LUC.
    
      New York Common Pleas ;
    
      General Term, February, 1865.
    Arrest.—Appeal.
    The right to arrest the defendant, in an action brought to recover possession of specific personal property, depends, not on the character of the cause of action, but on the question whether the defendant has disposed of the property so that it could not be found by the sheriff, or with intent to defraud the plaintiff of it.
    Hence, the ground of arrest in such an action may be tried on the affidavits, and if, on a motion to vacate the arrest, the affidavits are conflicting on this point, the decision of the motion will not be reversed on appeal.
    Appeal from an order vacating an order of arrest.
    This was ah action brought byTheóphile Jananique to recover a piece of lace, and thirty dollars damages for the unlawful detention thereof by defendant, Isabella De Luc.
    
      An order of arrest against the defendant was granted upon an affidavit stating the cause of action, and that the goods were concealed so that the sheriff could not find them.
    Defendant moved to vacate the order of arrest upon affidavits denying the possession of the goods, and declaring that no requisition had been made to the sheriff to demand the same.
    At special term, September 16, 1864, after argument, Judge Daly vacated the. order of arrest.
    The plaintiff appealed to the court at general term.
    
      F. H. B. Bryan, for the plaintiff, appellant.
    ' F. R. Ooudert, for the defendant, respondent.
   By the Court.—Cardozo, J.

As the order of arrest in this action was granted by me, I may take the liberty of saying that it was most inadvertently granted upon an affidavit which I am satisfied was entirely insufficient, and that had the application b.elow been to vacate the order on that ground alone, it should, and would, have prevailed. But as the defendant did not rely exclusively on the plaintiff’s papers, but moved on the merits, it will not be necessary to review and point out the defects of the original affidavits, especially since if that affidavit be assumed to be sufficient, the order below was right on the whole case as disclosed by both sides.

The application for arrest was made under subd. 3 of section 179 of the Code. In such cases, the right to arrest does not spring from the cause of action, and consequently the rule that where the cause of action furnishes the. ground df arrest, the order will not be vacated upon a denial of the alleged cause of action, because that would be to try the case on affidavits, has no application.

This action, which, when suits had names, would have been called an action of replevin, was brought to recover the possession of personal property.

In such actions, the defendant cannot be held to bail, as a matter of course, but if it appear that he has concealed, removed or disposed of tire property or any part thereof, so that it cannot be found or taken by the sheriff, and with intent that it shall not be so found or taken, or with the intent to deprive the plaintiff thereof, he may be arrested.

The right to arrest, therefore, depends not upon the character of this action, but upon the question whether the defendant has concealed, removed or disposed of the property so that it cannot be found or taken by the sheriff, and with the intent that it shall not be so found or taken, or with the intent to defraud the plaintiff of the benefit thereof. This is not matter which could be averred in the complaint, and traversed by the answer, .and, therefore, is not within the reason of the rule which refuses to try the merits of an action on affidavits.

This is really the only question which is worthy of remark, for no one can read the papers on this appeal without concluding that the preponderance of evidence is decidedly in favor of the defendant. But even if this were not so apparent, as the papers are conflicting, I think the proper rule is to hold that the decision below must be regarded as conclusive on the facts.

I think the order below is clearly right, and should be affirmed, with costs.  