Young v. Weeks , 7 Daly 115 ( 1877 )

Joseph F. Daly, J.

The judge at special term was justified in vacating the order of arrest. It was a second arrest of defendant for the same cause of action as the first arrest, upon papers presenting substantially the same defect as the papers in the first suit in the Supreme Court. Plaintiffs were bound to show that the second arrest was not vexatious, and if they fail to do so the court will infer it. (Archer v. Champneys, 3 Moore, 307, cited in People v. Tweed, 5 Hun, 382.) It may be that an honest mistake of a plaintiff in selecting his forum or his remedy in the first instance will not prejudice his right to a second order of arrest; the case of People v. Tweed, above cited, furnishes an illustration of how far the courts will go in so holding; . but the circumstances of each particular case must determine to what extent the mistakes of the plaintiff may be allowed to bear on defendant to the extent of needlessly harassing him, and how many experiments maj*- be unsuccessfully resorted to to seize a debtor’s body before the court will protect him. Here the plaintiffs sued in the Supreme Court, and united in their action two causes of action, upon one only of which they could arrest defendant. The order of arrest -was vacated. Plaintiffs sue now in this court and frame a statement of a cause of action covering the same demand, substantially, which they made in the Supreme Court, but ingeniously worded to assume the shape of a single claim. The judge at special term concluded this arrest to be vexatious, and I can hardly disagree with him.

But a graver difficulty is pointed out by him in his opinion rendered on the motion to vacate the order. It does not appear beyond a reasonable doubt on plaintiffs’ papers—in fact it is by no means clear—what plaintiffs’ demand is upon which they claim to arrest defendant. They sue upon a special agreement, under seal, by which plaintiffs were to sell goods, taking orders from third parties to whom plaintiffs, if satisfied of their responsibility, were to furnish goods, defendant to collect and account for proceeds of sales. They set up that they sold and delivered goods “ to defendant and to . his customers ” to the amount of $12,238 51; that they sold and delivered “to defendant” goods to the amount thus stated, to wit, $12,238 51, on which a balance is now due of $2,007 88. But for the fact that plaintiffs set up as part'of their cause of action and of arrest the agreement before mentioned, and averred that the goods to the amount mentioned were furnished “ to defendant and his customers,” it might be said that the mere allegation of the making of the agreement was surplusage and did not affect the only cause of action set up in the papers, a sale to defendant. But the agreement has some significance taken in connection with the SAVorn statement that the goods were furnished to defendant and his customers; a claim based upon that agreement is evidently contemplated though not developed in the affidavit, enough being stated to sIioav, hoAArever, that part of plaintiffs’ demand is for other goods than those sold to defendant. Under these circumstances the order of arrest was properly vacated, the ground of arrest being fraud in contracting the debt for goods sold to defendant on his sole responsibility.

Plaintiffs’ claim, hoAvever, that an affidavit of defendant (read on the motion to discharge the arrest in the action in the Supreme Court, and introduced on this motion with the whole record of the Supreme Court proceeding) shows that all the goods claimed for were sold to defendant on his credit.

But this averment by defendant of an agreement or state of affairs differing from that set up by plaintiffs, and on which plaintiffs claim judgment, will not help them. If they can-mot recover upon the agreement they set up they cannot recover, in this action upon a different agreement set up by ■defendant as a defense. The averment in defendant’s affidavit is inconsistent with any claim made by plaintiffs in the 'Supreme Court or in this court upon the agreement of November 9, 1874, upon which they rely.

The order should be affirmed.