
    Henry Hanson et al., Resp’ts, v. Patrick J. Langan et al., App’lts.
    
      (City Court of New York,
    
    
      General Term,
    
    
      Filed April 30, 1890.)
    
    1. Arrest—Allegations of complaint.
    In an action in which an order of arrest is applied for on the ground of fraud, the complaint must allege the facts on which the charge of fraud is-founded with sufficient particularity to warrant the conclusion asserted. An allegation of fraud in the words of the statute is not sufficient.
    2. Same—Amendment.
    Where the complaint alleges fraud, but imperfectly, but the facts are supplied by the affidavit used on the application for the order, the plaintiff should be permitted to amend so as to make the complaint conform to the prescribed practice.
    Appeal from order denying motion to vacate order of arrest.
    
      J.. Woolsey Shepard, for app’lts; F. W. Judge, Jr., and J. Qeor Flammer, for resp’ts.
   McAdam, Ch. J.

Section 549 of the Code, subd. 4, in requiring the fraud, for which an order of arrest is applied for, to be alleged in the complaint, makes the fraud a substantial part of the cause of action. It is as essential and material as the existence of the debt, and should be pleaded with the same particularity.

A general allegation of fraud, without setting out the facts showing the existence of the fraud, is bad. It presents no fact upon which issue can be taken. McMurray v. Gifford, 5 How. Pr., 14; Barber v. Morgan, 51 Barb., 116. Thus, the words “duly,” “lawfully,” etc., without a statement of the special facts of which they are predicated, have in general no effect. For such terms are not only indefinite, but affirm matter of law, instead of fact, and consequently are not traversable. Gould on Pl., 169-170. To charge that a party committed a fraud is likewise a mere conclusion.

The facts upon which the charge is founded must be alleged with sufficient particularity to warrant the conclusion asserted by the pleader. The term. “ fraud ” is the legal epithet applied to such facts. Subdivision 4 requires the fraud to be alleged, and the rules of pleading regulate the manner of alleging it. To allege, in the words of that subdivision, that the defendant was guilty of fraud in incurring the liability, or that he has since the making of the contract removed or disposed of his property or is about to remove or dispose of the same with intent to defraud creditors, is wholly insufficient. The complaint in the present instance followed this form literally, and was for the reasons stated clearly defective. The order of arrest was founded on this defective complaint and on an affidavit stating the facts constituting the fraud in detail. The defendants moved to vacate the order of arrest, and by moving upon the original papers admitted the truth of the facts charged therein, and taking the complaint and affidavit together, there was sufficient to sustain the order.

But § 558 provides that at any time after the filing or service of the complaint the order of arrest must be vacated on motion, if the complaint fails to set forth a sufficient cause of action as required by § 549, supra. The complaint here states a sufficient-cause of action on contract, supplemented by a general charge of fraud. While the allegations respecting the fraud are not sufficiently stated in detail to satisfy the requirements of the rules of pleading, it cannot be said that the requirement of § 549 has been entirely disregarded. As was said by Barrett, J., in McBride v. Langan, N. Y. Law Journal, April 15, 1890: “ The case differs from those where no averments of fraud were made in the complaint. The court there was without jurisdiction to grant the order of arrest. Here, however, averments of fraud are made, though imperfectly,” and as the same learned justice said in deciding another motion in the same action, N. Y. Law Journal, April 15,1890: “It is not a case where we are asked to insert an allegation of fraud in the complaint which is simply on contract, but in a complaint which attempts to set up fraud but does it insufficiently.” To this extent we approve of those decisions.

In Valentine v. Richardt, 24 N. Y. State Rep., 697, it was hold, “ that a simple allegation in a complaint that the defendant was guilty of a fraud in contracting or incurring the obligation upon which the action is based is sufficient to justify an arrest in the action.” We do not approve of this decision. The complaint must, under § 481 of the Code, contain a plain and concise statement of the facts upon which the plaintiff relies, and there is nothing in the Code provision in regard to arrests which changes this rule of pleading.

The purpose of pleading is to inform the party against whom it is aimed of the nature of the cause of action to the end that such party may prepare for the trial and not become the victim of surprise in regard to the nature of the action. Allen v. Allen, 52 Hun, 403; 24 N. Y. State Rep., 477. It must be reasonably definite and certain, not vague and indistinct. It differs from an affidavit in this: the latter is to present evidence to the court from which it may draw its conclusions as to the facts, whereas in a. complaint evidence should not be alleged, but conclusions of fact averred, to be established by evidence at the trial. Thompson v. Best, 21 N. Y. State Rep., 103.

While the complaint is imperfect, there is no reason why the plaintiffs should not be allowed to make it conform to prescribed practice, and the affidavit served with it shows that the error rests upon the pleader rather than the want of facts.

The object of § 550 was' to require a plaintiff obtaining an ■order of arrest on the ground of fraud in contracting the debt, or for removing or disposing of his property, for the purpose of cheating creditors, to make the fraud the gravamen of the action, so "that the defendant may, without disputing the debt, take issue and have a trial on the question of fraud charged, to the end that if innocent of wrong-doing the verdict may go in his favor, irrespective of the fact that the debt may be honestly owing. The general nature of the charge as contained in the complaint could not have prejudiced the defendants at the trial, because in order to recover the plaintiffs were bound to prove the fraud charged or •suffer defeat. The defendants could not have been misled or surprised by departure from the strict rule of pleading, for they had all the particulars in the affidavit which accompanied the complaint and order of arrest. The defendants also had it in their power to require, in advance of the trial, that the complaint be made more definite and certain, in which case the complaint as amplified would have given them no more information than the affidavit furnished.

Under these circumstances the objection seems to be one largely of form and technical in character, not going to the jurisdiction of the court, and under the liberal provisions of § 723, capable of remedy by amendment. The motion to vacate the arrest should not have been denied, but granted, unless the plaintiffs made their complaint conform to prescribed practice. It is proper to allow a party opposing a motion to amend the defects complained of without a new motion on his part, when the amendment proposed is proper in itself, and the court can see from the nature of the case that no new facts can be presented that ought to defeat it. Spalding v. Spalding, 3 How. Pr., 302; Hawley v. Bates, 19 Wend., 632 ; Whaling v. Shales, 20 id., 673.

The order appealed from will, therefore, be modified by vacating the order of arrest, unless within six days the plaintiffs amend their complaint to conform to these views, and allowing the defendants, in case the amendment is made, six days thereafter within which to answer the amended pleading; the amendment to be without prejudice to the proceedings already had. As modified, the order will be affirmed. As a condition of the amendment, however, the costs and disbursements of the appeal and ten dollars costs of the motion made below will be awarded to the defendants to abide the event of the action.

Ehrlich and Gtegerich. JJ. concur.  