
    ELWOOD against GARDNER.
    
      Supreme Court, Second District; Special Term,
    
    1870.
    Motion to set aside Execution against the Peeson.
    Wliere the ground of arrest is extrinsic to the cause of action, a motion may be made to set aside execution against the person, although the •time has passed within which a motion could be made to set aside the original order of arrest.
    Sh an action against an indorser of a promissory note, allegations of fraud on his part in inducing the plaintiff to purchase the note from him, may be regarded as extrinsic to the cause of action, within this rule.
    Motion to set aside execution.
    This action was brought by John B. Elwood against George S. Gardner. The summons was for relief. The complaint .stated, in substance, that plaintiff purchased of defendant, at defendant’s request, a promissory note made by Steele & Yoorhees, induced thereto by defendant’s representation that the makers were good and responsible, and the note would be doubtless paid at maturity; that the makers were in good credit, and had large capital; and that, as a further inducement, defendant said he would indorse the note; and that he was owner of real estate and securities of large value; that plaintiff relied on such representations, and on the strength of them, was induced to take the note, which the defendant indorsed to him; that, on becoming due, the note was duly presented and payment demanded, and it was protested for non-payment, and notice given to defendant. Plaintiff further alleged that defendant’s representations were false and fraudulent, known so to be by him, .and made to defraud the plaintiff, alleging circumstances tending to substantiate this charge; that, by reason of the false and fraudulent conduct of the defendant, plaintiff had sustained damage to the amount of the note and interest and costs of protest, and also costs, charges and expenses incurred in endeavoring to coEect the same of Steele & Voorhees, to the amount of fifty dollars, making, in all, the sum of one thousand and fifty-one dollars and twenty-four cents, and interest. Wherefore he demanded judgment for that sum, with interest on the thousand dollars from the maturity of the note, with costs.
    The answer alleged that defendant, being indebted to the plaintiff in a little more than three hundred dollars, obtained an additional loan of enough to make the sum one thousand dollars, less the sum of one hundred and fifty dollars, usurious interest, and delivered the note sued on, to the plaintiff as security; and demanded judgment that the complaint be dismissed, and plaintiff be adjudged to deliver up the note described in the complaint.
    On the trial, the plaintiff proved the note and computed the amount of interest, and recovered by direction of the court, a verdict for principal and interest, one thousand and thirty-five dollars and twenty-two cents, with costs and disbursements. The motion qf defendant’s counsel to dismiss the complaint, and for a verdict in favor of defendant, was denied.
    From this judgment the defendant appealed to the court at general term.
    
      Edwin G. Davis, for the defendant, appellant.
    I. This action is for damages on false representations ; and plaintiff must prove the fraud, or he fails to show a cause of action (Bell v. Mali, 11 How. Pr., 254; Mead v. Mali, 15 Id., 347; Zabriskie v. Smith, 13 N. Y. [3 Kern.], 322). The defense concedes that if this is an action against Gardner as indorser of a note, and the allegations of fraud in the complaint are extraneous to, and independent of the cause of action as made out by the other allegations in the complaint, then the ruling of the court was correct under all the authorities. But as to the nature of the cause of action, it is obvious that the summons and complaint control; now, what is this action? (1.) The summons is for relief. (2.) The complaint begins with allegations of fraud in the sale of the note ; and after the averment of the indorsement, the residue of the complaint entirely relates to the alleged frand. The note and its indorsement are mentioned incidentally, and simply for the purpose of fixing the measure of the plaintiff’s damages. And the last averment is “ That the plaintiff has sustained damages to the amount of said note and interest thereon, and costs of protest, and also of the costs, charges and expenses incurred in endeavoring to collect the same of said Steele & Yoorhees to the amount of fifty dollars, making in all, the sum of one thousand and fifty-one dollars and twenty-four cents and interestand he then demands judgment for that amount.
    
      John B. Elwood, respondent,
    
    Insisted that the action was on the note, and the allegations of fraud were surplusage.
    The Court, at general term, affirmed the judgment.
    The plaintiff issued execution against the person, after an execution against property had been returned , unsatisfied.
    The defendant then moved upon the merits, and upon the record, to vacate the execution against the person.
    
      
      Edwin G. Earns and James Troy, for the motion.
    
      John B. Elwood and George G. Reynolds, opposed.-
   Pratt, J.

The plaintiff obtained an order upon which the defendant was arrested before trial, and no motion has been made to set that order aside.

It is therefore in full force, and the execution against the person of the defendant was regular, and warranted by the state of the case, at the time it was issued.

But although the time has passed within which a motion can be made to set aside the original order of arrest, the authorities cited by the defendant fully show that the question of defendant’s liability to arrest can still be raised by a motion to set aside the execution (Pope v. Newcomb, cited in 30 N. Y., 589; Smith v. Knapp, 30 Id., 581; Suydam v. Smith, 7 Hill, 182; Humphrey v. Brown, 17 How. Pr., 481). Were this case one where fraud in the defendant is essential to a recovery by the plaintiff, it would be otherwise, for the motion would then tend to impeach the judgment. ■

In this case, the judgment-establishes the plaintiff’s right to recover, but not-his right to arrest the defendant in execution.

The defendant now raises the question for the first time. He is in season, and upon the affidavits as they stand, he should be discharged.

But as the practice has not been entirely clear, and as it is possible that the plaintiff may have it in his power to change the appearance of the case, by further testimony, he may, if he elects to do so, have an order of reference to a referee, to take such further proofs as may be adduced by either party, to hear the affidavits already in evidence, and report the evidence to the court, with-his opinion.

Let the order be settled on notice.  