
    David M. Torrey, App’lt, v. Francis A. Waters, Impl’d, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Arrest—Fraud.
    An order of arrest was granted against defendant in an action against himself and others on affidavits alleging fraud and conspiracy in procuring the discount of drafts made by the other defendants on this defendant and that the defendants are insolvent. On affidavits stating that these drafts-were the last of a senes which had run for several years which had been drawn on a company of which defendants were officers, and which for some time had been drawn on defendant individually at plaintiff’s request, and denying the other facts except that there were judgments against them, the order was vacated. Held, no error.
    Appeal from order vacating an order of arrest
    The order of arrest was granted on affidavits showing that plaintiff was induced to discount two certain drafts drawn by one Sanderson on this defendant to the order of Edward Waters and indorsed by the latter; that said drafts were not paid ; that plaintiff was induced to discount these drafts by false representations that they were all right; that both the Waters are insolvent and defendant Edward cannot be found.
    Defendant moved to'vacate on affidavits showing that these drafts were the last of a series of transactions which had occurred as often as three or four times a week for several years; that such drafts were formerly made on respondent as treasurer of the Atlantic Chemical Co., but in April, 1892, the official title had been dropped at plaintiff’s request and the drafts drawn on respondent individually; that since such change plaintiff had cashed fifteen in that form, of which eleven had been paid ; that such drafts were cashed for said company, the money used for it and the drafts paid from its funds; that it was solvent, and that the reason why respondent refused to pay those in question was because plaintiff suddenly refused to continue to cash drafts drawn as aforesaid; that plaintiff had knowledge of defendants’ insolvency. Plaintiff’s affidavit admitted that he had for a long time paid sight drafts drawn by Sanderson on said company to the order of E. E. Waters on respondent, and stated that he always did business with Sanderson and had no recollection of seeing Waters; that he was informed that there was no such company at Kingston, where the drafts were payable, and, therefore, declined to cash any further drafts, and the "drafts were then drawn on respondent individually and were discounted on the faith of a letter that they would be all right; that he had no knowledge of the insolvency of the Waters or as to the responsibility of the company ; that he was informed by a former clerk of defendants that tiiey were deceiving him, and then refused to cash any further drafts.
    
      Henry Cooper, for app’lt; D. M. De Witt, for resp’t.
   Dykman, J.

This is an appeal from an order vacating an order-arrest granted in action.

A perusal of the papers convinces us that the charges of fraud and conspiracy upon which the order of arrest was based are unfounded and an afterthought.

The plaintiff had cashed many drafts similar to those in question here and must have been in possession of full knowledge respecting the parties and their mode of doing business.

We think the order vacating the order of arrest was right and should be affirmed, with ten dollars costs and disbursements.

Pratt, J.

The defendant’s affidavits fairly meet the plaintiff’s. Upon the whole case we do not see that any fraud is made out The discounts were made during so long a time that we must believe plaintiff had knowledge of defendants’ financial condition, or else that he trusted them as officers of the corporation in reliance upon its solvency.

Order affirmed, with costs.

Barnard, P. J., concurs.  