
    James D. Hallen, Resp't, v. William G. Jones et al., App'lts.
    
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed February 6, 1893.)
    
    Arrest—Action on undertaking
    An order, upon the consent of the parties, vacating an order of arrest, is not, without more, such a final decision against the right to the order of arrest as will support an action on the undertaking.
    Appeal from judgment of the general term of the city court affirming judgment on a verdict by direction of the court The opinion states the case.
    
      J. B. Berry, for app’lts;
    
      James D. Hallen, for resp’t.
    
      
       Reversing 48 St. Rep., 937.
    
   Pryor, J.

In an action by defendant Jones against the respondent an order of arrest issued, but was vacated by consent. Thereupon this action was brought against Jones and the sureties in his undertaking on the arrest; and from the judgment against them they prosecute the present appeal.

At the close of the case the defendants moved to dismiss the complaint, because of a defect of parties and insufficiency of proof; and to the denial of the motion they duly entered an exception. They are entitled, therefore, to the presumption that the lease contains all the evidence. Meislahn v. Engelhardt, 49 St. Rep., 714.

If there be a defect of parties it is apparent on the face of the complaint: and was waived by the failure to demur. Zabriskie v. Smith, 13 N. Y., 322; Maxwell v. Pratt, 24 Hun, 448.

In their zeal on the one side to establish, and on the other to invalidate, the proposition that the vacatur was a definitive determination against the order of arrest, the learned counsel overlook a -point decisive of the appeal; namely, that the order was vacated by consent

To the maintenance of the action it was incumbent upon the respondent to show a final decision against the right to the order of arrest. Code, § 559. The original action not having gone to judgment, he relied on the vacatur as involving such decision. But, the order vacating the order of arrest was entered by consent, and so is not a judicial determination that the plaintiff in the original action “ was not entitled to the order of arrest.” In the Apollinaris Co. v. Venable, 48 St. Rep., 848, the court of appeals say, that “ where the plaintiff ex parte and without the consent of the defendant enters ah order vacating the injunction and discontinuing the action, this is equivalent to an adjudication that the plaintiff was not entitled to the injunction ; ” but conversely, “ if the dissolution of the injunction and dismissal of the action proceed upon matter arising subsequent to the commencement of the action and having no relation to the merits.”

In the case before us neither was the action discontinued nor the vacatur ex parte, but the order was entered by common consent, and the action left depending. The order recites no other ground for vacating the arrest than “ the consent of the plaintiff’s attorneys,” and so, in the absence of explanation, demonstrates that it involved no judicial determination of the right to the order of arrest. Of a discontinuance by agreement between the parties, the court of appeals said: “ The action was never finally determined by judicial decision. * * * There was no judicial determination upon the merits of the action, or the rights of the plaintiff to the injunction order at the time when it was made.” And, adverting to cases cited contra, the court distinguishes them by the essential difference that, in none of them was the discontinuance a matter of agreement between the parties to the action.” Palmer v. Foley, 71 N. Y., 106, 111; Johnson v. Elwood, 82 id., 362, 365.

It appears by the papers upon which the plaintiff in the original action proposed to move to vacate the order of arrest, that it had been granted irregularly and in contempt of court. Thus, the consent to vacate may be an admission by the appellants, and the order of vacatur a decision by the court, that they were never entitled to the order of arrest; and if so, possibly the present action is well brought Palmer v. Foley, supra. And yet the appellants offered the papers in evidence, and they were excluded on objection from the respondent.

Judgment reversed and new trial ordered, costs to abide the event.

Bookstaveb and Bischoff, JJ., concur.  