Chapin v. Seeley , 13 How. Pr. 490 ( 1856 )

By the court—Haréis, Justice.

The plaintiff, in the first instance, made a case which was undoubtedly sufficient, to justify the order of arrest. But it now appears that he omitted to state the whole case. It does not appear from the affidavit, upon which the order was obtained, that the money claimed by the plaintiff was received by the defendant from agents which he himself had hired, and that, by the terms of the contract between the plaintiff and the defendant, the latter was authorized to retain, “ out of the proceeds of the business, in his hands such sum as he might see proper to retain, to secure the deposit of $500 he had made with the plaintiff, when he entered his employment, and the balance which might be .due him for wages.” Had this appeared, it is quite evident, I think, that the plaintiff would have been unable to obtain the order of arrest.

As I understand the provisions of the 204th and 205th sections of the Code, the question upon every motion like this is, whether, upon the whole case, as made by the affidavits on both sides, the court, if called upon to act upon the application as res nova, would grant the order of arrest. If it would, then the motion to vacate should be denied. But if, after hearing both parties upon the question, it should appear that a case for arrest has not been made out, the order should be vacated. (See Hernandez agt. Carnobeli, 10 How. 449; The Republic of Mexico agt. Arrangois, 11 id. 9, and cases there cited; Cady, president, &c., agt. Edmonds, 12 id. 197.)

The application of this rule to the case under consideration relieves it of all difficulty. The defendant shows that the plaintiff is indebted to him, over and above the moneys claimed in this action, to a large amount. This the plaintiff, though the opportunity to do so has been presented, has not denied. The only ground upon which it is sought to sustain the order is, that though the plaintiff may be indebted to the defendant, yet the latter was secured by the property of the plaintiff in his hands or under his control, and that he was not authorized to retain the money received upon deposit from other agents. It is enough to say, that by the terms of the contract he had this authority.

The. motion to vacate the order must, therefore, be granted, with costs. ■