
    New Haven Web Co., Resp’t, v. Francis J. C. Ferris, App’lt. Armstrong Manufacturing Co., Resp’t, v. Same, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 1, 1889.)
    
    Arrest—In civil actions—Code Civ. Pro., §§ 549, 558 and 567.
    When a defendant was arrested on a charge of disposing of his property with intent to defraud his creditors, and the complaint in the action was not served or filed prior to judgment, and it was not until after final judgment had been entered by the plaintiff, which was more than twenty days after the arrest, that defendant discovered that the complaint did not contain the requisite allegations as to fraud, Held, that defendant was not precluded by section 567 of the Code of Civil Procedure from moving to vacate the order of arrest.
    Appeal from an order of the special term denying a motion of thé defendant to vacate an order of arrest.
    Code of Civil Procedure, section 567, provides that except where an order of arrest can be .granted only by the court, a defendant may at any time before final judgment, or if he wa's arrested within twenty days before final judgment, at any time within twenty days after the arrest, apply to vacate the order of arrest.
    
      Andrew Gilhooly, for app’lt; Franklin Bien, for resp’t.
   Van Hoesen, J.

The plaintiffs charged the defendant with having disposed of his property with intent to defraud his creditors, and on -the 29th day of May, 1888, the •defendant was, on their application arrested. The complaints were not served. On the 19th of June, twenty-one days afterwards, the plaintiffs entered their judgments upon complaints that did not contain any allegation that the defendant had fraudulently disposed of his property, but contained only an ordinary account of a sale and delivery of goods to the defendant. As the defendant was arrested more than twenty days before the entry of final judgment, and as before making the motion to vacate the order of arrest the defendant had been under arrest more than twenty days, the plaintiff insists that the defendant is precluded by section 567 from moving to vacate the order of arrest. It is plain that section 567'does not apply to this •case. The ground of the defendant’s motion was not exposed to new trial after judgment had been entered, and then he had been in custody for more than twenty days. It was not until final judgment had been entered, which was at least twenty-one days after his arrest, that the defendant discovered that the complaints, which had never been served at all, and which had not previously been filed, failed to contain what section 549, subdivision 4, imperatively requires that they shall contain, namely, the allegation that defendant had disposed of his property with intent to defraud his creditors. It would be a mockery to provide that the defendant may not take advantage of an objection, the existence of which he could not possibly detect until the time to make the objection has passed beyond recall.

The defendant was not too late in his motion. Section 549 provides that there cannot be a recovery in an action in which a defendant is arrested for disposing of his property with intent to defraud his creditors, unless the plaintiff alleges in his complaint and proves at the trial that the defendant has committed the fraud.

If the complaint fails to contain the necessary and requisite allegation, the defendant may, under section 558, move, at any time, to vacate the order of arrest. The plaintiff, for want of such an allegation in his complaint, cannot recover in the action, and as he cannot recover, it would be idle to hold the defendant to answer any judgment that might be recovered. As the action must needs-fail, the order of arrest must fail.

The plaintiffs had no right to enter judgment as they did in these cases, and they did not better their condition by their unwarranted proceedings. As they had arrested the defendant for disposing of his property with intent to defraud his creditors, they were bound, before they entered any judgment, to serve an amended complaint in which the charge of fraudulently disposing of property should have been plainly made. Section 558.

The motions to vacate the orders of arrest should be granted, with costs.

Daly aud Allen, JJ., concur. •  