
    ELLEN E. PECK, Appellant, v. JOSEPH R. LOMBARD, Respondent.
    
      Order of wrest — when it should not he nacated on conflicting affidmits.
    
    When the facts on whicli an order of arrest is granted are not extrinsic to the-cause of action, but the nature of the action alone furnishes the authority for granting it, it should not be vacated upon evidence tending to disprove-the existence of the cause of action; the merits of the controversy should not-be determined upon affidavits, but should be allowed to await the trial of the action.
    Appeal from an order made at Special Term, vacating an order of arrest issued in the above-entitled action.
    The action was brought to recover from the defendant a penalty for selling lottery tickets to the plaintiff. The order of arrest was-granted on an'affidavit setting forth the facts of the sale, and the motion to vacate was made on an affidavit, by the defendant, denying-the allegation contained in the complaint and in the plaintiff’s affidavit, and alleging that he purchased the tickets as her agent. The plaintiff replied by an affidavit controverting all the allegations of’ the defendant’s affidavit.
    
      Horace Graves, for the appellant.
    
      Paul Fuller, for the respondent.
   Gilbert, J.:

This being an action to recover a penalty, the order of arrest was properly granted. The affidavit of the plaintiff showed that a sufficient cause of action existed against the defendant. That only was prerequisite to the right to obtain the order (Code Civ. Pro., §§ 549-556, 557.)

The defendant, upon his affidavit controverting the existence of the cause of action, obtained an order vacating such order of' arrest. We think that the latter order was improperly granted. Where the facts on which the order of arrest is granted are not extrinsic to the cause of action, but the nature of the action alone constitutes the authority for granting it, it should not be vacated upon, evidence tending to disprove the canse of action. The merits •of the controversy should not be determined upon affidavits, but .should be allowed to await the trial of the action. (Welch v. Winterburn, 14 Hun, 518.)

Order appealed from reversed, with $10 costs, and disbursements.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order vacating order of arrest reversed, with costs and disbursements.  