
    Jacob Knight et al., App’lts, v. John H. Abell, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    Order op arrest—When Granted.
    Where there is but a single cause of action, which is founded however upon different demands and some of these demands were of a character which would support an order of arrest, and others would not, Held, that an order of arrest should not be granted. Following Faston v. Cassidy, 21 Hun, 467.
    Appeal from special term, order vacating order of arrest.
    
      John H. AtJcinson, for app’lts; Charles O’Neil, for resp’t.
   Bartlett, J.

—This order of arrest was granted in an action upon a, contract for the purchase and sale of eggs and butter where it was alleged in the complaint that the defendant was guilty of fraud in contracting or incurring the liability. Code Civil Procedure, § 549, subd. 4. The complaint set out only one cause of action. Four separate sales were specified; one on July 13th, one on July 18th, and two on August 2, 1887. There was enough in the papers to warrant a finding of fraud as to the sales made on the second of August, but not sufficient to warrant such a finding as to the prior sales.

In Easton v. Cassidy (21 Hun, 459), there was but a single cause of action, which was founded however, upon different demands. Some of these demands were of a character which would support an order of arrest, and others would not. This general term held that the order of arrest was properly vacated. A different view seems to have been entertained in the second department in the case of Fitch v. McMahon, 3 N. Y. State Rep., 147. That case was subsequently affirmed in the court of appeals (103 N. Y., 690), 4 N. Y. State Rep., 305; but the decision there was placed upon different grounds from that of the general teim, and does not touch the questions involved in this appeal. Under these circumstances we must follow Easton v. Cassidy (supra) and affirm the order appealed from.

Order affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J.,and Macomber, J., concur.  