
    STUYVESANT against BOWRAN.
    
      New York Common Pleas; Special Term,
    
    
      October, 1867.
    Abkest.—Motion to Vacate.—Sufficiency of Evidence.
    Where an order of arrest is founded upon the nature of the cause of action itself, and not upon extrinsic facts, the court will not, in general, vacate the order, upon affidavits denying the cause of action.
    If this can be done in any case, it can only be where all doubt is removed, and the state of factp shown would warrant the judge in directing a non-suit at the trial
    
      In an action for criminal conversation, the court will not vacate an order of arrest upon the ground that the guilty acts charged against the defendant are alleged to have been committed under circumstances rendering the charge highly improbable, and that they are denied by the defendant.
    Motion to vacate an order of arrest or to reduce the amount of bail.
    The facts are stated in the opinion.
    
      George Shea, and Edwin James, for the motion.
    
      Stephen Whitehorne, and Alfred A. Phillips, opposed.
   Van Vorst, J.

From the affidavits it appears that the plaintiff’s knowledge of the offence was derived by him from the statements of Sullivan, and then only some four years after its commission. It appears that Sullivan was at the time an errand boy in the office of the plaintiff, and lived in plaintiff’s house, but left plaintiff’s employment in 1864, and lately and in May last made to the plaintiff the revelations contained in his affidavit, of the particulars of the guilt of the wife and the offence of the defendant. Defendant is a widower, brother-in-law of the plaintiff, having married plaintiff’s sister, for some years past deceased. He was also a resident in plaintiff’s house in 1863, at the time he is alleged to have been guilty of the offence charged. The criminal conversation is alleged to have been committed so publicly as to have been witnessed by this boy; no efforts or precautions having apparently been used by the parties to conceal their crime. Why there was no earlier communication made by this witness to the husband of the offence is not stated, which is the more remarkable, if the boy’s mind was impressed with the guilt of plaintiff’s wife and defendant, as the plaintiff claims, in ,his affidavits, to have taken the lad into his office and house from considerations of kindness and mercy, and that the boy was forced to leave him on account of the cruel treatment of his wife.

In support of the motion to vacate the order, an affidavit was read, in which defendant denies most explicitly the allegations contained in the affidavits upon which the arrest was granted. Other matters appeared in the affidavits which are not important to be considered in the decision of this question.

The counsel for the defendant earnestly claim that there is not sufficient proof contained in the affidavits produced by plaintiff, of the commission of the offence by the defendant, and that the positive denial of the defendant should avail to overcome the effect of the affidavit of Sullivan. That the statements of Sullivan are so improbable that the defendant’s denial, in connection with other circumstances, entitle him to be discharged from arrest, or in any event to have an order reducing the amount of bail.

Offences of the character charged in the complaint are always difficult to be established by complete and overwhelming proof; still there should always be such evidence adduced as to satisfy the court that the defendant is guilty. The evidence, while it points out the offence, should be credible. That the circumstances are improbable, however, is no answer to a sworn statement of an occurrence made by a person claiming to be an eye-witness, whose testimony is unimpeached. Many improbable things do actually occur in life, within the experience of all, and the force of testimony is not to be avoided by an argument based only on the seeming improbability of the statements, nor can much weight be given to a mere denial of the charges, made by the defendant. If capable of committing this offence, and that, too, under the roof of the brother of his own deceased wife, he would be quite likely to deny it. But, in cases of this character, where the arrest is based upon the nature of the action itself, and not upon extrinsic circumstances, and is supported by affidavits, it is not the rule of this court to vacate the order upon affidavits introduced by the defendant denying that there is a cause of action, for that would be trying the merits of the action in advance upon ex parte affidavits. (Solomon v. Wass, 2 Hilt., 179.) There might be such a clear case made on a motion of this character as would justify a judge in vacating an order of arrest, although it was virtually a disposal of the merits of the action, but it would only be in a case removed from all doubt, and upon a state of facts which would justify the judge to non-suit at the trial. (Lewis v. Noble, 15 Abb. Pr., 475; Barnett v. Gracie, 34 Barb., 20.) The motion to vacate the order of arrest is therefore denied. Nor do I think the amount of bail should be reduced. The amount fixed is moderate in the light of the offence charged; it is not oppressive and there is no reason to believe that it is beyond the ability of the defendant to furnish.

■ Motion denied.  