
    THE UNION BANK a. MOTT.
    
      Supreme Court, First District;
    
    
      General Term, February, 1859.
    Arrest.—Motion to Vacate.—Final Judgment.
    An order denying defendant’s motion to vacate an order of arrest, should not be reversed on appeal, merely because the original? affidavit on which the arrest was obtained, alleged the facts on information and belief.
    The affidavits on which an order of arrest was granted, stated the grounds of arrest mainly on information and belief, and not positively ; and the defendant on a motion to discharge the order, did not deny these allegations; and his motion was denied.
    
      Held, that on appeal from the order denying defendant’s motion to discharge the order of arrest, the court would assume such allegations as conceded to be true.
    Under section 183 of the Code,—providing that the order of arrest as a provisional remedy may be made at any time before judgment—if, after judgment has been recovered, the defendant obtains and avails himself of leave to come in and defend, he is liable to arrest upon an order although the judgment awarded final process against the person, and the condition of his being let in, is that the judgment should stand as security. By so doing he elects to treat the action as still undetermined, and is estopped from availing himself of the judgment, as a determination of it which would preclude the provisional remedy.
    
    
      Appeal from an order at special term denying defendant’s motion to vacate an order of arrest.
    The action was to recover from G. S. and J. H. Mott moneys charged to have been fraudulently overdrawn by them from the plaintiffs. At the commencement of the action an order of arrest against both defendants was obtained; and the defendant J. H. Mott was arrested upon it; hut it was not executed against the defendant G. S. Mott. Upon failure to answer, the plaintiff entered judgment against the latter. The judgment authorized the plaintiffs to issue execution as well against the body as the property of such defendant. After execution against his property had been issued, he obtained from the court leave to answer the complaint, and proceed in the action on payment of costs and sheriff’s fees, hut it was ordered that the judgment should stand as security. The plaintiff then obtained an order for his arrest as a provisional remedy, upon which he was arrested, and from which he moved at special term to be discharged. The motion was denied (see the case reported 8 Ante, 150); and he now appealed to the general term.
    
      David Dudley Field, for the appellant.
    
      Samuel A. Foot, for the respondent.
    
      
       Roberts a. Carter.—(Supreme Court, First District; Special Term, September, 1859.)—In this case the defendant was arrested on an order granted as a provisional remedy pending the action. He gave bail, who justified ; but after judgment was arrested on execution against the person. He now moved to vacate the order of arrest.
      
        E. T. Rice, for the motion.
      
        Gilbert Dean, opposed.
      Ingraham, J.—On July 22, 1857, an order of arrest was granted, and the defendant was arrested in December, 1857. He gave bail, and the sureties justified.
      On August 3, 1857, judgment was perfected, and on appeal the judgment was affirmed in December, 1858. The defendant was afterwards arrested on execution against his person. He now moves for an order vacating the arrest.
      As the law was at the time of-the arrest, the defendant could not make this motion before the justification of bail had taken place. (Code, § 204; 12 How. Pr. R., 519.) If there had been no bail put in, he might have made the motion before he was charged in execution. (Wilmerding a. Moon, 1 Suer, 645, S. C.; 8 Horn. Pr. It., 213 ; 12 lb., 198.)
      Since the act of 1858, amending the Code, this section has been altered so as to substitute the word “judgment,” in the place of justification of the bail, and the motion to vacate the order of arrest can only be made now before judgment. As this motion'is made long after the judgment was entered, it cannot be granted.
      Motion denied, with $7 costs.
      Ckowell a. Brown (Supreme Court, Sixth Sistrict; Special Term, Secember, 1858.)—In this action the plaintiff was arrested on an order granted as a provisional remedy. After giving bail, judgment was had against him, and execution issued thereon against his person, on which he was arrested. He now moved to vacate the order of arrest.
      Mason, J.—If this motion were made before the defendant had justified his bail, I should have no doubt upon the papers before me, that the order of arrest should be vacated. The question now presented for adjudication is, whether this can be done after judgment, and the defendant has been arrested and is imprisoned on an execution against his person, or rather whether the ca. set. can be set aside, and the defendant discharged from arrest thereon ?
      It is very clear that the defendant cannot move to vacate the original order of arrest after he has put in and justified bail. (Stewart a. Howard, 15 Barb., 26; 12 How. Pr. R., 616; lb., 197 ; 8 lb., 213 ; 3 Sandf., 706.) And this is conceded by the defendant’s counsel on this motion; but it is claimed and insisted that after judgment, and the defendant has been arrested on an execution against his person, that the bail is functus officio, and that the estoppel created by giving bail ceases, and that when an execution is taken out upon the judgment against the defendant’s person, he may move to set it aside as not warranted by the facts, and that it is no answer to his application, to say that he allowed himself on the same facts to be arrested by preliminary process. That the quiet submission to one wrong may provoke, but cannot justify another, and we are referred to the opinion expressed by Roosevelt, J., in the Bridgewater Paint Manfacturing Company a. Messmore (15 How. Pr. P., 12), as affirming and sanctioning this practice. He declares his opinion to this effect, but that ease cannot be regarded as authority, for what he upon this subject is obiter.
      
      I think such a motion cannot be entertained after an execution has been issued upon the judgment against the defendant. The condition of his undertaking is prescribed by section 187 of the Code, that he will at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. Now while this duty rests upon him, I do not see how he can move to set aside the very process which his undertaking imposes upon him the duty of rendering himself amenable to. {Code, § 187.) It is not necessary that the record should show the liability of the defendant to arrest. It is sufficient to justify an execution against the person, that an order of arrest in pursuance of sections 179 and 181 has been obtained and remains in force. (Corwin a. Freeland, 2 Sold., 560.) This execution was justified by the order of arrest as held in Corwin a. Freeland, and I do not see how we can interfere with it.
      The motion comes too late, and must be denied, with ten dollars costs.
    
   By the Court.—Roosevelt, P. J.

The object of this appeal on the part of the defendant Garret S. Mott, is to be discharged from an order of arrest obtained against him by the Union Bank, on the alleged ground of a fraudulent abstraction of a very large amount of its funds, by means of unauthorized overdrafts.

Two objections are made to the order:

1. That the affidavits, whatever may he the character of their contents, if true, were mainly on information and belief.

This objection, under the circumstances, can have hut little weight. The appeal is not from the original ex pa/rte order of arrest, but from the subsequent order of another judge, made on hearing both parties, confirming the order previously made. On that hearing the defendant had an opportunity of denying the truth of the information on which the plaintiffs founded their belief. Copies of the affidavits had been duly served upon him. Instead of contradicting or .explaining their allegations, he left them wholly unanswered. What, therefore, might perhaps have been comparatively weak before, became strong by his silence. At all events, it relieved the judge from the duty, if such a duty existed, of canvassing overnicely the form of the affidavits, and fully justified his conclusion that the statements were not denied, because (with truth) they could not be.

We are bound, therefore, or at least authorized on this appeal, to assume, as virtually conceded facts, that Garret S. Mott, on or before January, 1849, for some reason unexplained, gave his brother, Jacob H. Mott, a power of attorney to make deposits and draw checks, in his (Garret’s) name ; that Garret at the time was in partnership with another brother, named Hopper Mott, under the firm of Mott Brothers, jewellers, Jacob being one of their clerks ; that, by the connivance of a bookkeeper in the bank, fraudulent overdrafts were effected, in four years, to the amount of over $96,000 ; that the plaintiffs had recently obtained access to the boobs of Mott Brothers, from which it appeared that the fraudulent overdrafts in the name of Garret had gone into the business of the firm; that, subsequently to December, 1855, and down to March, 1858, Jacob kept an account in his own name, and by the connivance of the same book-keeper fraudulently overdrew the further sum of $44,000 and upwards; and finally, that the defendants, both Garret and Jacob (for such is the positive statement in one of the affidavits, uncontradicted), “ by collusion,” with Brotherton, the book-keeper, and by means of the checks referred to, some in Jacob’s name as attorney, and some in Jacob’s name, without such description, fraudulently obtained from the bank the aggregate sum of $140,000, and upwards.

So far, then, as relates to the first objection, it is clear, we think, that the judge whose decision is appealed from was fully justified, on the question of fact, in refusing to set aside the order of arrest.

2. The next objection is of a somewhat technical character. It appears, that before the date of the order of arrest, a regular judgment by default for the whole demand, $198,600.87, had been obtained, with an award of execution as well against the body of the defendant as against his property. And it is insisted that the final process thus awarded necessarily extinguishes all provisional remedies previously existing.

This result would undoubtedly have followed, had not the defendant himself, for his own benefit, and on his own application, obtained from the court a modification of the judgment, depriving it of its ordinary character as a res-judicata, and leaving it in force only as a lien or collateral security on his real estate. He was permitted, notwithstanding his default, to put in an answer and make a defence upon two conditions: one, that he should pay the costs, including the fees and charges on the execution which had been issued; the other, that he should allow the judgment which had already been entered to stand as security for the alleged indebtedness. He agreed to these conditions by paying the costs and putting in the answer, which the plaintiffs accepted. Having availed himself of the order, he is bound by all its conditions. In other words, he has elected to treat the controversy as a lis pendens, and is estopped thereby from treating it as a res adjudicata.

He cannot assume such a contradictory position as to claim, in the language by which the Code defines a complete judgment, that this judgment is now “ the final determination of the rights of the parties in the action,” and yet at the same time go to trial on the basis of no determination at all having been made.

On neither ground, therefore, should the order of arrest have been vacated; and the denial of the motion to that effect of course must be affirmed with costs.  