
    (29 Misc. Rep. 676.)
    RIEBEN v. FRANCIS.
    (Oneida County Court.
    December, 1899.)
    Arrest—Action for Fraud and Deceit—Discharge—Trial of Issue of Fraud.
    Under-Code Civ. Proc. §-549, as amended by Act 1879, providing for the arrest of defendant in an action upon contract when he has been guilty of fraud in making the same, the allegation of fraud must be made in the complaint, and tried as an issue in the action, and, if the complaint shows sufficient grounds for an order of arrest, defendant cannot be discharged upon a motion to vacate such order, supported by affidavits denying the fraud.
    Action by John G-. Rieben against James E. Francis to recover'for alleged fraudulent representations in making a contract. Motion to vacate the order for arrest of defendant denied.
    A. T. Wilkinson, for the motion.
    F. H. Hazard, opposed.
   BUNMORE, J.

The facts as to fraudulent representations alleged on the part of plaintiff and denied by defendant present an issue as to the right of plaintiff to an order of arrest. Under the old Code that question was decided by the court or judge upon the pleadings and affidavits, the same as the right to a warrant of attachment or an injunction is now. No evidence of the fraud was given in this class of cases upon the trial. Prior to 1879, whether a defendant was guilty of fraud in contracting the debt or incurring the liability could be tried only on a motion to vacate the order of arrest. The same provision, in substance, was embodied in section 550 of the Code of Civil Procedure when it first became a law in 1877. In 1879 the Code of Civil Procedure was amended by transferring a portion of subdivision 2 of section 550 to section 549 as subdivision 4, by which it was intended to change the rule of law so that an allegation of fraud in contracting the debt was required to be made in the complaint, and tried as an issue in the action, and not as previously, upon affidavits upon motion to vacate the order of arrest. That is the practice now. The question whether defendant committed a fraud upon plaintiff should, therefore, be tried the same as any other issue at the trial. WJiere the facts alleged, if true, do not show sufficient grounds for granting an order of arrest, the order should be vacated on motion; but where there is a conflict of evidence the fraud becomes a question for the jury to determine, the same as the other issues in the case. The plaintiff alleged facts which, if true, entitled him to recover. I therefore do not thiuk the order of arrest should be vacated, but the question of whether defendant was guilty of fraud should be reserved until the trial. The motion is denied, with $10 costs to plaintiff to abide the event.

Motion denied, with $10 costs to abide event.  