
    James N. Brown and Others, Respondents, v. John Coleman, Appellant.
    
      Order of arrest—on a motion to meate it an affidavit not recited therein will not be considered — what is insufficient to establish that the bank account of the drawer of a check was not good or was not made good for its payments—it is not shown by proof of refusal of payment —proof that the plaintiffs parted with value for it.
    
    Upon a motion to vacate an order of arrest, made upon the ground that the complaint failed, to state a cause of action and that the moving papers were insufficient, it appeared that the complaint, which was verified, alleged that the plaintiffs received and accepted for value a check for §2,000 drawn by the defendant to their order on a South Carolina bank, “by which check■ the defendant falsely and fraudulently represented that he had funds to meet the same” in said bank, “whereas said defendant had only a small balance in said bank; ” that the defendant drew the check for §2,000 with intent to deceive and defraud the plaintiffs and to induce them to give him credit for ■ that amount, and failed to increase his balance in the bank to meet the check; that the-check was duly presented for payment, but payment was refused, and it was duly protested for non-payment; that the full amount thereof is now due and owing to the plaintiffs, and that they have been damaged “ by reason of said fraudulent acts of said defendant as aforesaid ” in the sum of §2,000 and the protest fees, no part of which has been paid.
    The order of arrest recited that it was granted upon the affidavit of one of the plaintiffs. This affidavit stated that the defendant was justly indebted to them in the sum of §2,098.93, “ as more fully appears by the sworn complaint in this action hereto annexed.” There appeared in the record an affidavit of the attorney for the plaintiffs stating that the defendant had, on several occasions, “admitted to deponent that at the time he issued the check for two thousand dollars set forth in the complaint he, the said Coleman, had no funds in the People’s Bank of Darlington, South Carolina, with which to pay said check, and that said Coleman has promised said deponent on several occasions to pay said check, but has not done so.”
    The attorney’s affidavit was not recited in the order of arrest.
    
      Held, that the order of arrest should be vacated ;
    That on a motion to vacate an order of arrest an affidavit not recited in the order will not be considered.
    That, without the affidavit of the attorney, there was no evidence to show that the defendant’s bank account was not good for the amount of the check;
    That, even if the affidavit of the attorney could be considered, the admission to the attorney was simply that at the time the check was drawn the defendant had no funds in the bank, and it did not appear that at the time the check was presented for payment he did not have ample funds to meet the same;
    
      That the admission to the attorney was inconsistent with the allegation in the Complaint that the defendant did have a small balance in the bank at the time of drawing the check; '
    That it did not appear where the transaction took place or that there was any statute of the State of South Carolina making it a crime to knowingly draw a check upon a bank without having sufficient funds therein to meet the same;
    That it did not satisfactorily appear that the plaintiffs had parted with value for the check, as the allegations upon this subject were mere conclusions and the evidentiary facts had not been stated;
    That the .allegation that the defendant drew the check With intent to deceive the plaintiffs and to induce them to give him credit, was not accompanied with any statement that they did give him credit, and the nature of the credit was not stated — non constat the yalue given for the check may have been an existing indebtedness;
    That the allegation that the defendant failed to increase his balance in the bank to meet 'the check had not been supported by affidavit and was not sufficiently supported by the mere fact that payment was refused.
    Appeal by the defendant, John Coleman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of April, 1904, denying the defendant’s motion to vacate an order of arrést theretofore granted in the above-entitled action.
    
      E. W. Marlow, for the appellant.
    
      Matthew F. Ennis, for the respondents.
   Laughlin, J.:

The motion to vacate the order of arrest was- made upon the papers upon which it was granted, upon the- grounds, among others, that the complaint fails to state á cause of action, and that the' moving papers were insufficient. The complaint is verified. The plaintiffs allege that they«received and accepted for value a check for $2,000 drawn by the defendant to their order on the People’s Bank of Darlington, S. C., “ by which check the defendant falsely and fraudulently represented that he liad funds to meet the same ” in said bank, “ whereas said defendant had only a small balance in said bank that the defendant drew the check for $2,000 with intent to deceive and defraud the plaintiffs and to induce them to give him credit for that amount, and failed to increase his balance in the bank to meet the check; that the check was duly presented for payment, but payment was refused, and it was duly protested for non-payment; that the full amount thereof is now due and owing to the plaintiffs, and that they have been damaged “by reason of said fraudulent acts of said defendant as aforesaid ” in the sum of $2,000 and the protest fees, no part of which has been paid. The order of arrest was granted on the affidavit of one of the plaintiffs, which states that the defendant is justly indebted to them in the sum of $2,098.93 for principal, interest and protest fees as payees of a check drawn by him on said bank for the payment of the sum of $2,000 to the order of the plaintiffs, “ as more fully appears by the sworn complaint in this action hereto annexed,” and that the plaintiffs are about to commence, by a summons thereto annexed, an action in the Supreme Court against the defendant. There appears in the record an affidavit .of the attorney for the plaintiffs stating that the defendant has on several occasions “ admitted to deponent that at the time he issued the check for two thousand dollars set forth in the complaint he, the said Coleman, had no funds in the People’s Bank of Darlington, South Carolina, with which to pay said check, and that said Coleman has promised said deponent, on several occasions, to pay said check, but has not done so.” This affidavit is not specified in the order of arrest, which recites that it was granted on the affidavit of one of the plaintiffs. Without the affidavit of the attorney there was no evidence to show that the defendant’s bank account was not good for the amount of the check. The appellant does not raise the point that the affidavit of the attorney is not referred to in the order; but in obtaining an order of arrest a party is confined strictly to proper practice and the defendant is entitled to know from the order itself the moving papers upon which it is based. If, however, the affidavit of the attorney could be considered, still we think the papers are insufficient. The admission to the attorney is merely that at the time the check was drawn the defendant had no funds in the bank; but it does not appear that at the time the check was presented for payment he did not have ample funds to meet the same. Moreover, the admission to the attorney is inconsistent with the allegation in the complaint that the defendant did have a small .balance in the bank at the time of drawing the check. It does not appear where the transaction took place. If in the State of South Carolina, no statute is set forth showing that it is a crime to knowingly draw a check upon a bank without sufficient funds upon deposit at the time to meet the same. Nor does it satisfactorily appear that the plaintiffs parted, with value for the check. It is stated in the complaint-that it was received and accepted for value, but that is a mere conclusion, and to warrant an order of arrest the evidentiary facts should be staffed. It is further argumentatively alleged that the defendant drew the check with intent to deceive and, defraud the plaintiffs and to induce them to give him credit for the amount; but it is not directly stated that they did give him credit. The nature of the credit, if given, is not stated. It may have been, upon an existing indebtedness. It is further alleged that he failed to increase his balance in the bank to meet the check ; but there is no affidavit to substantiate this allegation, and it is not sufficiently supported by the mere fadt that payment was refused.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion should be granted, with ten dollars costs.

Van Brunt, P. J., and McLaughlin, J., concurred ■; Patterson and Ingraham, JJ., concurred in result.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  