
    WICKES a. HARMON.
    
      Supreme Court, First District;
    
    
      Special Term, July, 1861.
    Arrest.—Affidavits inconsistent with the Complaint.
    Although an order of arrest, in an action on contract, may be granted upon facts entirely independent of those necessary to be stated in the complaint, no order of arrest should be granted, in an action on contract, where the statements in the complaint are inconsistent with material allegations contained in the affidavits upon which the order of arrest is .sought.
    In an action against the defendant as drawer of a bill of exchange payable to the order of A., although the complaint did not allege any indorsement of the bill by A., nevertheless, since the plaintiff, in order to recover on the bill, must make title to it through such indorsement, he is not entitled to an order of arrest against the defendant, upon allegations that the defendant falsely represented that a third person was authorized to indorse the name of A., the payee, whereby plaintiffs were induced to discount such bill. The plaintiffs cannot be permitted to insist, when they apply for an order of arrest, that the indorsement is without authority and the indorser not liable, and at the trial, or by their complaint, claim that it is a genuine indorsement.
    Under section 204 of the Code as amended, a motion to vacate an order of arrest may be made at any time before judgment, and notwithstanding the defendant has given and perfected bail.
    Motion to vacate an order of arrest.
    6
    This was an action against the drawer of a bill of exchange which was payable to order of a third party. The plaintiffs obtained an order for defendant’s arrest, upon affidavits alleging that the defendant, the drawer, had falsely represented that one Huse had authority from the payee to indorse the same, and*''that the plaintiffs had been thereby induced to discount the bill so indorsed by Huse. This order the defendant now moved to vacate.
    
      Jas. T. Brady, for the motion.
    
      Wm. H. Scott, opposed.
   Leonard, J.

—An order of arrest in an action on contract, may be granted upon facts entirely independent of those necessary to be stated in the complaint.

There is no inconsistency in obtaining, in such an action, an order of arrest on affidavits showing that the seller parted with his goods or his money on false and fraudulent representations made by the purchaser as to his pecuniary circumstances, while the complaint alleges only a loan of money or a sale and delivery of goods, which remain unpaid.

No order of arrest should be granted, however, in an action on contract, where the statements in the complaint are inconsistent with material allegations contained in the affidavits upon which the. order of arrest is founded. (Stelle a. Palmer, 7 Abbotts' Pr., 181.)

The ground of arrest set out in the affidavits upon which the order of arrest was obtained in this case is, that the defendant,

. Isaac D. Harmon, falsely represented that J. L. Huse was authorized to indorse the name of O. L. Harmon on a certain bill of exchange for $3,200, payable to the-order of C. L. Harmon, whereby the plaintiffs were induced to discount the said bill; and allegations that Huse had no authority to indorse the name of O. L. Harmon.

The cause of action set out in the complaint is the said bill, upon which the plaintiffs seek to recover against Isaac D. Harmon, as the drawer thereof. Nothing is stated in the complaint tending to show that O. L. Harmon or any one else has ever indorsed the bill; but it is plain that the plaintiffs can never recover on this bill without making title through the said indorsement as genuine or made by the authority of 0. L. Harmon, express or implied.

Isaac D. Harmon moves to vacate the order of arrest, on affidavits showing that Huse indorsed the name of 0. L. Harmon with full authority, or, at least, under such circumstances as will establish his liability. The defendant does not desire to take issue on this indorsement. On the contrary, his defence against the charge of fraud consists wholly in averring the obligatory character of the indorsement.

It follows that the plaintiffs may obtain judgment against Isaac D. Harmon, as the drawer of this bill of exchange, on his admission of the indorsement by default in pleading, or by his answer to the complaint, notwithstanding their assertion in the affidavits on which the order of arrest has been granted, that the indorsement of the payee was made without authority.

In my opinion, it is impossible that the plaintiffs can be permitted to insist, when they apply for an order of arrest, that the indorsement is without authority, and the indorser not liable thereon, and at the trial, or by their complaint, claim that it is a genuine indorsement. Such inconsistencies would be a reproach to the administration of justice.

The plaintiffs’ counsel suggests that the defendant will be es-topped at the trial from denying the authority of Huse to make the indorsement, the defendant having induced the plaintiffs to discount the bill by an assertion of its validity.

If we admit that the defendant would be so estopped, I think we may as justly assert that the plaintiffs are estopped from denying its validity, after having asserted it in their complaint or before the court at a trial, or after asserting its validity in any legal proceeding where such assertion would be to their advantage.

There is, also, the greatest reason to doubt whether the indorsement was, in fact, made without authority.

The only evidence to show want of authority is the statement of the indorser, who has the greatest interest to deny his liability.

Huse, who made the indorsement, states that he was authorized.

Enough is shown to render it still more doubtful whether, if Huse were not actually authorized to indorse this particular bill, the defendant did not fully believe that he was so authorized. Huse had frequently indorsed such bills with the knowledge of C. L. Harmon, and without any objection on his part.

The plaintiffs’ counsel objects, that a motion to vacate an order of arrest -cannot be made after the defendant has given and perfected bail.

This objection seems to be unfounded since the last amendment of section 204, authorizing the motion to be made at any time before judgment.

The motion to vacate is granted, with $10 costs of motion to the defendant, to abide the judgment.  