
    (54 Misc. Rep. 54.)
    DADIRRIAN v. WHITSON.
    (Supreme Court, Special Term, New York County.
    April, 1907.)
    1. Abbess—Motion to Vacate Obdeb.
    Motion to vacate an order of arrest may be considered, if founded on ■ the papers on which the order was granted, whether defendant has been arrested or not.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 4, Arrest, § 102.]
    2. Same—Affidavit.
    An affidavit for an order of arrest, which designates defendant by a fictitious name, where plaintiff knows his true name and fails to state any facts on which the alleged cause of action arises, is insufficient.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 4, Arrest, §§ 52, 53.]
    Action by Dieran L. Dadirrian against John G. Whitson.
    Motion to vacate order of arrest granted.
    W. J. Kelley, for the motion.
    Charles W. Sinnott, opposed.
   GREENBAUM, J.

The motion to vacate the order of arrest being based upon the original papers upon which the order to arrest was granted, it is immaterial whether the defendant was arrested or not. Martin v. Gross, 56 N. Y. Super. Ct. 512, 4 N. Y. Supp. 337; Staub v. Myers, 16 App. Div. 476, 44 N. Y. Supp. 954. In the latter case the dissenting opinion indicates that the reason why the minority of the justices in that case did not vote to vacate the order of arrest was that the defendant had not been arrested under the process and that the motion to vacate was premature. It is evident, however, that the majority of the coúrt must have thought otherwise, even if they did not discuss the point, since the order was reversed.

The affidavit upon which the order was founded seems to me to be insufficient to warrant its issuance. It expressly appears that the action is brought against the defendant under a name which plaintiff as'serts is fictitious, and that plaintiff knew his real name. The affidavit is also insufficient, in that it omits to state any facts from which the alleged cause, of action arises. The order of arrest is vacated, but, in view of the long delay in moving, without costs.

Order vacated, without costs.  