
    Hallen v. Jones.
    (New York Common Pleas
    General Term,
    February, 1893.)
    An order entered 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. E. Berry, for defendants (appellants).
    
      James D. Hallen, for plaintiff (respondent).
   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 case contains all the evidence. Meislahn v. Englehard, 1 Misc. Rep. 412.

If there be a defect of parties, it is apparent on the face of the complaint, and was waived by the failure to demur. Zahrisliie 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 it was not a judicial determination that the plaintiff in the original- action “ was not entitled to the order of arrest.” In Apollinaris Co. v. Venable, 48 N. Y. St. Repr. 848, the Court of Appeals say, that “ where the plaintiff ex parte and without the consent, of the defendant, enters an 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 pa/r-te, 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 nc 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 coni/ra, 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, 71 N. Y. 106. And yet the appellants offered the papers in evidence and they were excluded on objection from th® respondent.

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

Bookstaver and Bischoff, JJ., concur.

Judgment reversed and new trial ordered.  