
    Dicran L. Dadirrian, Plaintiff, v. John G. Whitson, Defendant.
    (Supreme Court, New York Special Term,
    April, 1907.)
    Arrest on mesne process — Motion to vacate order — Motion on plaintiff’s papers — Designating defendant by fictitious name and omitting to state facts.
    Where a motion to vacate an order of arrest is founded on the papers upon which the order was granted, it is immaterial whether the .defendant was arrested or not.
    An affidavit is insufficient as the foundation for an order of arrest which designates the defendant by a fictitious name where the plaintiff knows his true name and where it omits to state any facts from which the alleged cause of action arises.
    Motion to vacate an order of arrest.
    W. J. Kelley, for motion.
    Charles W. Sinnott, opposed.
   Greenbaum, J.

The motion to vacate the order of arrest being based upon the original papers upon which the order of arrest was granted it is immaterial whether the defendant was arrested or not. Martin v. Gross, 56 N. Y. Super. Ct. 512; Staub v. Henry, 16 App. Div. 476. In the latter case the dissenting opinion indicates that the reason why the minority of the justices in that case did not vote to vacate the order of arrest was that the defendant had not been arrested under the process, and that the motion to vacate was 'premature. It is evident, however, that the majority of the court must have thought otherwise, even if they did not discuss the point, since the order was reversed. The affidavit upon which the order was founded seems to me to be insufficient to warrant its issuance. It expressly appears that the action is "brought against the defendant under a name which plaintiff asserts is fictitious, and that plaintiff knew his real name. The affidavit is also insufficient in that it omits to state any facts from which the alleged cause of action arises. The order of arrest is vacated, hut, in view of the long delay in moving, without costs.

Order vacated, without costs.  