
    HOBOKEN BEEF CO. v. LOEFFEL.
    
      N. Y. Supreme Court, First Department; General Term
    
    June, 1889.
    1. Arrest; cause of action on contract or in tort.] Arrest may be ordered, under Code Civ. Pro. § 549, as amended in 1886, in an action on contract, if a fraud such as is mentioned in the statute be also alleged, although not with damage.
    2. Pleading; allegation of ground of arrest.] The fact that the pleader, after stating a cause of action on contract, adds, in compliance with that provision, allegations showing a fraud which is ground for arrest does not change the nature of the cause of action, but will avail to sustain the arrest.
    
    
      Appeal from, an order denying a motion to vacate an arrest.
    
      Henry Cooper, for defendant, appellant.
    
      G. A. Heaney, for plaintiff, respondent.
    
      
      Note on Incidental Allegations' oe Fbattd.
      This question is one of much [practical importance, and has hung in doubt in the minds of many of the ¡profession since the recent amendment requiring the complaint to state the facts constituting the ground of arrest.
      The decision in the text seems clearly to accord with the words of the statute; and it will be found to accord also with justice to suitors and the convenience of the ¡profession, when the results which would follow any other decision are traced out, as indicated in 2 Abb. New Pr. & F. 355, note.
      A similar principle is applied where a plaint iff has occasion to allege a fraud of defendant, not for the purpose of obtaining arrest, but by way of anticipating and avoiding a bar which defendant could otherwise rely on; as where the defendant induced plaintiff to take notes on time, by false representation, and plaintiff sues without delay, and alleges the false representations as entitling him to do so. Here his action is on contract solely, notwithstanding he alleges and must prove the fraud. Wiegand v. Sichel, 4 Abb. Ct. App. Dec. 592; aff’g 34 Barb. 84; Roth v. Palmer, 27 Barb. 652 and cases cited. So where he sues for money paid by him under an executory contract, and alleges fraud as the ground oil which he is entitled to rescind and to recover on the implied contract to repay. In all such cases his cause of action is on contract, although he may be bound to prove the fraud in order to recover.
      So also where he sues for price of goods and alleges breach of the buyer’s stipulation to give notes, as a reason for not waiting the expiration of the term of credit, his action is not thereby made one for the breach of that stipulation, but is still only an action for the price of the goods. See Lee v. Decker, 6 Abb. Pr. N. S. 392; Wills v. Simmonds, 8 Hun, 189.
    
   Van Brunt, P. J.

The appellant in his points has stated the ground of the motion to set aside the order of arrest obtained herein to be that the complaint states a cause of action on contract and does not allege fraud with damage.

In view of this statement of the ground upon which the appellant founds his motion, it is not at all necessary to consider the allegations contained in the complaint, because he concedes that if an order of arrest may be obtained in an action upon contract, which does not allege fraud with damage, this appeal is not well taken.

It seems tó us that a very brief consideration of section 549 of the Code disposes of the objection. . That section provides that the defendant may be arrested in an action brought for either of the following causes, and subdivision 4 is 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.”

An order of arrest may issue, therefore, in actions on contract where the cause of action is simply on contract; but in such cases it is necessary that the complaint should contain something more, namely, an allegation that in incurring the liability on the contract which was sued for the defendant was guilty of a fraud. The action need hot be to recover damages because of the fraud. If the defendant was guilty of fraud in incurring the liability on contract, which forms the subject of the station, and it is so alleged in the complaint, then the right to arrest follows.

In the case at bar, the complaint sets up a cause of action for goods sold and delivered, and it also contains allegations that in order to induce the plaintiff to make such sale, and with intent to defraud it of the goods so sold, the defendant falsely and fraudulently represented to the plaintiff that he ■owned certain real estate in the county of Hudson, in the ■State of New Jersey, aiid that said real estate was free and unincumbered, and that the plaintiff relying upon said representations, and being deceived thereby, was induced to sell to the defendant the goods therein before mentioned ; that said representations were false and untrue, and known by defendant to be false and untrue ; that the defendant did not own said real estate at the time of making the representations, nor did he own any other real estate in said county. These were complete and perfect allegations of fraud, and the fact that the complaint does not seek or allege damages by reason of the fraud, does not in any way interfere with the right of arrest; because in an action upon contract, where the complaint alleges that the defendant was guilty of a fraud in incurring the liability, an order of arrest may issue. These are the allegations in this complaint. The action is upon contract, and it is alleged that the defendant fraudulently, and for the purpose of deceiving the plaintiff, made certain allegations in regard to his responsibility which were false. This clearly constituted a fraud, and thereby brought the complaint within the provisions of the Code; and the ¡order should be affirmed, with $10 costs and disbursements'

Baetlett, J., concurred.

Ordered accordingly.  