
    (20 Misc. Rep. 404.)
    SHIDLOVSKY v. CASHMAN et al.
    (City Court of New York,
    General Term.
    May 29, 1897.)
    Arrest in Civil Action.
    An application for an order of arrest under Code Civ. Proc. § 549, subd. 4, was improperly granted where no complaint or affidavit stating fully the allegations of the complaint was presented, the remedy being allowed under the Code only in cases “where it is alleged in complaint that defendant was guilty of fraud.”
    
      Action by Morris Shidlovsky against Harry J. Cashman and another. From an order denying a motion to vacate an order to arrest, Cashman appeals.
    Reversed.
    Argued before CONLAN, SOHUCHMAN, and O’DWYER, JJ.
    Leon Kronfeld, for appellant.
    Abraham A. Joseph, for respondents.
   O’DWYER, J.

The application for the order of arrest was made under subdivision 4 of section 549 of the 'Code of Civil Procedure, and no complaint or any affidavit setting forth what the allegations of the complaint were was presented upon the application, and none exist, so far as we are advised by this record. An order of arrest under the subdivision and section of the Code referred to cannot be granted before the existence of a complaint, inasmuch as the Code prescribes the remedy only in cases “where it is alleged in the complaint that the defendant was guilty of fraud,” and it is difficult to see how the court can learn what is alleged in the complaint when there is no complaint. Straus v. Kreis, 6 Civ. Proc. R. 77; Engelhardt Co. v. Benjamin, 2 App. Div. 92, 37 N. Y. Supp. 531.

The order appealed from should be reversed, with costs, and the motion granted, with costs. All concur.  