
    William Ellson, Respondent, v. Edwin A. Hance, Appellant, Impleaded with Daniel L. Risley.
    
      Arrest—false representations by an alleged agent—insufficiency, of the moving
    
    Affidavits, used on an application for an order qf arrest,, made in an action to recover damages for false representations, alleged to have been made by the agent of oho of the defendants, do not warrant the granting of an order for the arrest of such defendant, where there is no proof that he personally made any false representations to the plaintiff, or that the person making the representations was his agent, and it appears that such defendant and his alleged agent were both agents and employees of the other defendant.
    Appeal by the defendant, Edwin A. Hance, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of July, 1899, denying said defendant’s motion to vacate an order for his arrest.
    
      Charles Francis Carusi, for the appellant.
    
      Alexander H. Geismar, for the respondent.
   Ingraham, J. :

The action was brought to recover damages sustained by the plaintiff in having been induced to purchase ten acres of land in the State of South Carolina for the sum of $210 by means of certain false and fraudulent representations made by the defendants. Upon the complaint and the affidavits of the plaintiff and his wife orders for the arrest of the defendants were granted and the appellant .Hance was arrested. The defendant Risley was a non-resident and-was not within the jurisdiction of the court. The motion was made by the defendant Hance to set aside this order of arrest upon affidavits, and from a denial of the order entered upon that motion this appeal is taken.

The question is whether there was competent evidence, of representations made by this, appellant which have been shown to be false and thus sustain the charge against him. From the affidavits made by the plaintiff it appeared that in answer to advertisements in certain newspapers he called at the office of the defendant Risley in the city of New York and there saw the defendant Hance, who was in charge of the said office, and who held himself out to be the New York manager of the said Risley; that thereupon and after certain negotiations a contract was closed between deponent and Hance for the purchase of a lot of ten acres of land in South Carolina, said lot being designated as No. 94,” for the consideration of $250, less an allowance of $10 from said consideration on account of the railroad fare to be paid by the plaintiff in going from the city of New York to South Carolina. The affidavit then states : “ The representations made by said Hance through his agent Brecht and by Daniel Risley, the above-named defendants in this action, which induced this deponent to enter into this contract, were that this lot consisted of the most excellent farming land, exceedingly fertile, properly drained and fit for planting and farming. As a further inducement to the purchase of said lot in said colony, divers circulars and newspapers were put into the hands of this deponent by said Hance and the said Risley, in all of which said tract of land and said colony containing the lot No. 94 sold to this deponent by said defendants was likewise described as consisting of the very finest farming land, exceedingly fertile, well drained and suitable for planting and farming.” The plaintiff thus alleges that these representations were made by Hance through his agent Brecht. Now, there is no evidence to show that Brecht was ever the appellant’s agent, or that he. ever made any representations as coming from him, but it is alleged and proved in the case that both the appellant and Brecht were agents of Risley and employed by him.

It is not necessary to determine whether or not Risley would be responsible under the allegations in this complaint and upon this proof. As Risley does not appéar, and as no motion is made on his behalf, that question can be postponed ; but there is no allegation in the affidavit upon which this order of arrest was granted or in the affidavits upon the motion as it was finally submitted that this appellant personally made any representations to the plaintiff as to the condition of this particular lot, or that there was a statement which could be considered as the representation of an existing fact which this appellant stated to the plaintiff was true. None of the circulars andi newspapers mentioned in the plaintiff’s affidavit as having been put into liis hands by these defendants are annexed to the papers. There is a mere general statement that in such circulars and newspapers the said tract off land and the said colony containing the lot Ho. 94 sold to the deponent was described as consisting of the very finest farming land, exceedingly' fertile, well drained and suitable for planting and farming. To- justify tins order of arrest there must be some evidence of a distinct representation which was made by the appellant,'the reliance upon which has caused the plaintiff injury. Here there is no proof of any distinct representations m'ade by Hance (the-appellant) except what was alleged to halve been made through his agent Brecht, and there is no proof that Brecht was his agent or had any authority to act or was acting for; him, but on the contrary the proof is conclusive that Brecht ivas a fellow-employee of this appellant, and this appellant was in no way bound by his representations or statements. . .

By the answering affidavit the defendant has made out a very strong case which largely tends to disprove the allegations of the plaintiff that-the representations which were alleged to have been made were false. It is true that in the circulars and letters written in the name of the defendant Eisley there are somewhat extravaigant descriptions of the locality in which this property is situated; but the affidavits produced by the defendants tend to substantiate the representation of facts contained in these circulars and letters and' prove that the representations alleged to have been made by the defendants. as to the condition of this land were true. The . testimony to show that they were false depends entirely upon the affidavits of the plaintiff and his wife, and it is not shown that they have any knowledge of farming land, the plaintiff’s occupation hawing been .that of a street car conductor. They were upon thé premises but two days in the beginning of April when heavy rains are not uncommon, and the fact that at that particular time the land appeared swampy and covered with water could not be heldj in the face of the affidavit submitted by the defendant, to be satisfactory evidence that the land was not as represented.

Upon the whole case I am satisfied ’that the motion to vacate this order of arrest should have been granted.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order of arrest granted, with ten dollars costs.

Van Brunt, P. J., Barrett, Rumsey and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  