By the Court,
Clerke, P. J.As to the facts upon which the order of arrest.was based, and which constitute the gist of the action, we would, in ordinary eases, allow the *636former to stand and' abide the trial of the issues. Their truth or falsity, in an action of tort, should never be decided on a motion. But, in this case, after the perpetration of the alleged frauds, there was a settlement between •the parties; the plaintiff accepting the defendant’s note for $700, 100 shares of Combination Silver stock, and a due-bill for 200 shares of that stock. This was a waiver of his right to arrest the defendant, and a condonation of the tort.
[New York General Term,
November 1, 1869.The order should be reversed, with costs.
Clerke, Sutherland and Cardozo, Justices.]