
    STROMBERG v. MAISTER.
    (City Court of New York, General Term.
    January 29, 1901.)
    1. Civil Action—Order or Arrest—Motion to Dismiss.
    An order of arrest may be vacated on motion, though the grounds of arrest and cause of action are Identical, and an examination of the affidavits on the motion involve a trial on the merits.
    
      2. Same—Trial on Merits.
    Where a cause of action and ground of arrest are identical, and the order of arrest is vacated on motion involving a trial on the merits, the plaintiff is still entitled to try the merits of his cause of action before judge and jury.
    Appeal from trial term.
    Action by Phillip Stromberg against Isaac Maister. From an order vacating an order of arrest granted on the grounds of assault, plaintiff appeals.
    Affirmed.
    Argued before MCCARTHY, CONLAN, and SCHUCHMAN, JJ.
    Rosenthal & Rosenthal, for appellant.
    Phillips & Rippe, for respondent.
   SCHUCHMAN, J.

The cause of action and the ground of arrest are identical. The appellant contends that in such a case the order of arrest will not be vacated on motion, inasmuch as it involves the trial of the merits of the cause of action on affidavits. The rule, however, seems to be established that an order of arrest may be vacated in the same manner in which it was obtained,—that is, on a motion based on affidavits,—and that, when a motion to vacate an order of arrest is made, although the right to arrest grows out of the cause of action, it is the duty of the court to examine the affidavits, and to dispose of the case according to the just preponderance of the proof as contained therein. Corwin v. Freeland, 6 N. Y. 562; Levy v. Bernhard, 2 App. Div. 336, 37 N. Y. Supp. 849. On the affidavits submitted on the motion, the preponderance seems to be in favor of defendant. The plaintiff’s right to try the merits of his cause of action before a judge and jury still remains, and, if successful, he is entitled to enforce judgment by execution against the defendant’s body. In cases of this kind orders of arrest ought to be applied for in comparatively rare instances, and granted with caution by the courts.

Order appealed from affirmed, with $10 costs and disbursements. All concur.  