Voorhees Rubber Manufacturing Co. v. McEwen

The complaint alleges that between the 22d day of March, 1904, and' the 4th day of- August, 1904, both days inclusivé,. the plaintiff, at the special, instance and request of the defendant, sold .and delivered to the defendant certain goods/wares and merchandise of the agreed value of $867; that of that sum, the sum of $98.88 liad been paid; that in order to induce the plaintiff to make-said sale and delivery and with intent to. defraud it of said goods,- the defendant falsely arid fraudulently represented to the plaintiff that he. (defendant) had formed a-copartnership with one Francis M, Miller, under the firnrname.and style of McEwen Miller; that said Miller was aman of. large- resources,, whereas, in truth said Miller and said defendant had not formed a-'copartnership. With this complaint there was submitted to the judge who granted the order of arrest the affidavit -of the general manager of the plaintiff in the city of New- York udio deposes to. the representations made by the defendant, that he obtained the-merchandise upon such- representations;' the affidavit of the treasurer of the plaintiff that" it relied on such-, representation, and the affidavit' of Miller who deposes that there was never such a firm and that he never was in business with the . defendant. Upon these affidavits an order of arrest was granted, whereupon the defendant moved to vacate such, order of arrest. Although an affidavit of- the defendant was submitted, he does riot *543deuy any of the facts stated. Assuming that the verification of the complaint is irregular in that the-venue is laid in the State of New York and county of New York, when it appears from the certificate of the notary public that the. affidavit of notification was taken before a notary public in the State of New Jersey, it is as good as an unverified complaint. The affidavits clearly establish ,tlie representations upon which the goods were sold, the falsity, of the representations, and bring the case within section 549 of the Code of Civil Procedure which provides that in an action upon contract, express or implied, other than á promise to marry, a defendant may be arrested where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability. Section 557 of the Code provides that the order may be granted in a case specified in section 549 of the act, where it appears' by the affidavit of the plaintiff, or any other person -that a sufficient causé of action exists against the defendant, as prescribed in that section.

It follows that the Order appealed from should be affirmed, with ten dollars costs and disbursements.

O’ErIeh, P. J., Pattersoh, Laughlin _and Clarke, JJ. concurred.

Order affirmed, with ten dollars costs and disbursements. Orderfílecf. ' '