Citations
- 125 N.Y. 364
Full opinion text
Finch, J.
It must be assumed that the order of arrest was granted in this case under the provisions of section 549 of the Code, which permit it to be made where- there was a fraud in the contracting of the debt, or in seeking to avoid it after it was contracted. The affidavits used on the application are not printed in the return, and all we know about them is the aq>parent concession on both sides that they alleged as ground of arrest a fraud effected by a transfer of the debtor’s property with an intent to cheat his creditors. Assuming that to be true, it follows that to sustain an order of arrest the complaint was required to allege, and the proof to show, the fraud inherent in the contract made, or attempted thereafter. But the complaint, when filed, proved to contain no such allegation and was simply a complaint on contract. Judgment was entered by default and, as a judgment, was entirely regular, (115 N. Y. 641), but left no basis for an arrest or an execution against the person. By the terms of section 558, a motion to vacate an order of arrest, if the complaint fails to set forth a sufficient cause of action as required by section 549, that is if it fails to allege-not only á debt but a fraud in contracting it