
    Richard Flatow, Pl’ff, v. Theodor Von Bremsen, Def’t.
    
      (City Court of New York,
    
    
      Special Term,
    
    
      Filed September 6, 1890.)
    
    Arrest—When amended complaint cannot, be..resorted to to uphold ORDER OP.
    Where the papers upon.which an order of arrest was granted failed to' set forth any cause of action, an amended complaint ser ved_'after the ar- , rest was made cannotjbe resorted,to to upholdjhe order.
    
      Motion by defendant to vacate an order of arrest, on the papers upon which it was granted, on the ground that the complaint failed to set forth a sufficient cause of action.
    The action was brought by the plaintiff to recover $2,000 damages alleged to have been sustained by reason of the utterance of certain words, which, upon demurrer to the amended complaint, have, in an opinion filed this day, been held not to be actionable of themselves. After the service of the complaint, which was made at the time of the arrest of the defendant, the plaintiff, without leave of court obtained therefor, served an amended complaint, whereby special damages are alleged to have been sustained by reason of the utterance of the words set forth. The defendant contends that the amended complaint cannot be considered on this motion.
    The other facts are stated in the opinion.
    
      Foster & Stephens, for def’t and motion; Howe & Hummel, for pl’ff, opposed.
   Giegerich, J.

The only substantial question to be determined upon this motion to vacate the order of arrest is, whether the amended complaint, which was served after service of the notice of motion to vacate the order of arrest, should be resorted to to uphold the order of arrest herein.

On the 31st day of July, 1890, the defendant was.arrested by virtue of an order of arrest granted herein on the 28th day of July, 1890, upon the affidavits of the plaintiff, Oaroline Both Bowsky and John Grolmund, and upon the summons and complaint accompanying the same, and at the time of his arrest he was served with a copy of the order of arrest, and of the papers above mentioned. Thereafter, and on August 1, 1890, the defendant served a notice of motion returnable on the 5th day of August, 1890, at 10 A. M., to vacate the order of arrest on the ground that the complaint fails to state facts sufficient to constitute a cause of action. On the 5th day of August, 1890, and before the hearing of the motion above referred to, an amended complaint was served upon the attorney for the defendant herein.

The original complaint failed to allege special damage by reason of the utterance of the words spoken by the defendant, which are not actionable of themselves; but the amended complaint alleges special damage, not specifically, yet sufficiently to sustain the complaint on demurrer, as will be seen on reference to the opinion filed this day respecting the demurrer to the amended complaint herein.

Section 558 of the Code of Civil Procedure, as amended, provides : “ But 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 section 549 of this act.”

The original complaint, served with the order of arrest, and the affidavits upon which the order of arrest was granted, fail to set forth any cause of action whatever in favor of the plaintiff against the defendant, and, in my opinion, the amended complaint should not be considered on this motion, and should not be resorted to to uphold the order of arrest.

In Southern, etc., Navigation, etc., v. Sherwin, 1 Civ. Pro., 44, the complaint which accompanied the order of arrest failed to set forth a cause of action. Tie defendant demurred to the complaint, and moved to vacate the order of arrest on the papers on which it was granted, on the ground that the complaint failed to set forth a sufficient cause of action. Thereafter, and within the proper time, the plaintiff served upon the attorneys for the defendant an amended complaint, supplying certain omissions, and, for the purpose of sustaining the order of arrest, obtained an order to show cause why the original complaint should not be declared amended nunc pro tune, as of the date of its service upon the defendant, and his arrest, and Lawrence, J., in denying the motion, and in vacating the order of.arrest, among other things, well says:

“ The complaint which was served upon the defendant with the summons and affidavits fails to set forth any cause of action whatever in favor of the plaintiff against the defendant. It therefore follows that this motion must be granted unless the amended complaint which has been served on the part of the plaintiff can be resorted to to uphold the order of arrest, by granting the plaintiff’s motion that such complaint be declared amended nunc pro tune as of the date of the service of the original complaint. See Hecht v. Levy, 20 Hun, 53 ; Easton v. Cassidy, 21 id., 460. I am of the opinion that the motion of the plaintiff should not be granted for the purpose of upholding the order of arrest. The issuing of an order of arrest is not a matter of course, and it is the duty of the plaintiff who invokes the aid of the corn-t in obtaining such an order to see that he has complied with all the requirements of the law applicable thereto. * * * The liberty of the citizen is of quite as much importance as the preservation or security of his property. If the provisions of the Code are to be strictly construed in cases of attachment, the same rule of construction should be applied to the provisions which relate to the obtaining of orders of arrest. Again, this motion is made under § 568, on the plaintiff’s own papers, and must be heard, as that section declares, upon these papers only. To allow the plaintiff to introduce an amended complaint on this motion would be allowing him to refer to other papers than those on which the order was granted and in violation of that section.”

I fully concur in the views of Mr. Justice Lawrence as above stated. Since the publication of the decision in the foregoing case, a number of cases have been decided which seem to hold that an amendment of the complaint will be allowed, after service thereof, in order to sustain the order of arrest. See McBride v. Langan, two cases, Supreme Court Chambers, Barrett, J., N. Y. Law Journal, April 15-, 1890; Hanson v. Langan, 30 N. Y. State Rep., 828. Upon perusal of these cases, it will be found that while the cause of action was imperfectly set forth in the complaint, and in the affidavits upon which the order of arrest was' granted, they, however, contained sufficient averments to confer jurisdiction and to constitute a sufficient cause of action. • In this case, the affidavits upon which the order of arrest was granted and the original complaint wholly fail to set forth any cause of action whatever in favor of the plaintiff against the defendant, and the court was without jurisdiction when the order of arrest was granted.

While the courts have been liberal in permitting amendments, in order to uphold mandates in cases where the objection thereto was one largely of form and technical in character, and not going to the jurisdiction of the court, the rule should not, however, be extended to cases where the liberty of the citizen is at stake, and especially where the court was 'without jurisdiction when the mandate was granted.

It follows, from these views, that the order of arrest heretofore granted herein must be vacated, with ten dollars costs.  