
    LENNON v. BRANDT.
    N. Y. City Court, Special Term ;
    
    
      May, 1888.
    
      Arrest; omission to allege grounds in complaint^ Where the defendant was arrested, after the service of the summons and complaint, on the ground of a fraudulent disposition of his property, the complaint failing to allege the grounds of arrest, and no amended complaint was served—Held, that the order should be vacated, as it is necessary, since the amendment of 1886 to Code Civ. Pro.,, §§ 549,'550, to allege the facts in the complaint.
    Motion to vacate order of arrest.
    This action, brought by Thomas J. Lennon against John1 Brandt, was commenced by the service of the summons and complaint on April 25, 1888.
    The complaint set forth a cause of action for goods sold and delivered. On April 27, 1888, the plaintiff obtained an order for the arrest of the defendant, upon an affidavit setting forth that the defendant had disposed of his property with intent to defraud his creditors. Thereupon the defendant moved to vacate the order of arrest, on the ground that the complaint served in the action failed to set forth a sufficient cause of action, as required by Code Civ. Pro. § 549, and also that no amended complaint has been served or made as required by Code Civ. Pro. § 558.
    
    
      
      John R. Tresidder, for the defendant and the motion.
    
      Hiram, Ketchum, opposed.
    
      
       Before the amendment of 1886 (c. 672) a fraudulent disposition of property after the making of a contract, was one of the cases where the-right to arrest depended on facts extrinsic to the cause of action. By the amendment, Code Civ. Pro. § 550, sub-d. 2, with other sub-divisions, of that section, were included in section 549, where the right to arrest depends on the nature of the action.
      Code Civ. Pro. § 558, as amended by L. 1886, c. 672, provides as. follows :
      “ Subject to the provisions of the last preceding section the order may be granted at any time after the commencement of the action. It may also be granted to accompany the summons; but at any time after the filing or service of the complaint the order of arrest must be vacated ■on motion, if the complaint fails to set forth a sufficient cause of action as required by section 649 of this act, but where the order is applied for after the filing or service of the complaint, the court before granting the same may, without notice, direct the service of an amended complaint, so as to conform to the allegations required in sub-divisions 2 and 4 of section 549 of this act.”
      Code Civ. Pro. § 549, enumerating the cases for the granting of an ■order of arrest, provides, in sub-d. 4, as follows:
      “In an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting, or incurring the liability, or that he has since the making of the contract, or in contemplation of making of the same, removed or disposed of his property with intent to defraud his ■creditors, or is about to remove or dispose of the same with like intent; ■but where such allegation is made, the plaintiff cannot recover unless he proves the fraud on the trial of the action ; and a judgment for the defendant is not a bar to a new action to recover upon the contract ■only.”
      ■ It does not follow, however, that the facts alleged as the ground of Arrest, although they must be proved on the trial in order to get judgment, are part of the cause of action in every sense, and turn the action for all purposes into an action of tort. The better opinion is that the action may still be claimed an action on contract for the purpose of other remedies not inconsistent with arrest.
      See Gutta Percha, &c. Co. v. Mayor, &c. of Houston, 20 Abb. N. C. 218.
    
   McAdam, Ch. J.

Since the amendment to sections 549 and 550 of the Code, made in 1886 (ch. 672), the plaintiff, if he obtains an order to arrest the defendant on the ground ■of fraudulent disposition of property, must allege the facts in his complaint, or the arrest must be vacated (§ 558). "Where the arrest is applied for after the service of the «complaint, the court, “ before ” granting the order, may, without notice, direct the service of an amended complaint, so as to make the allegations conform to the Code requirement (§ 558, supra). The object of the amendment of 1886 was to change the rule previously existing, and to require the plaintiff to put into his complaint the allegations as to fraudulent dispositions of property that have in this instance been left out. The cases construing the provisions referred to prior to their amendment are inapplicable. The motion to vacate the order of arrest must therefore be granted, but without costs.  