Pitt v. Freed ( 1892 )

BARNARD, P. J.

The defendant contracted a debt with the plaintiffs By fraudulent representation. The plaintiff commenced an action in the court of Pennsylvania, where defendant lived, and procured an attachment. This attachment was vacated, and the plaintiffs entered up ■a judgment as upon a contract for goods sold. No order of arrest can . be granted on the original fraud. The court of appeals held in Baxter v; Drake, 85 N. Y. 502, that a plaintiff is entitled to an order of arrest .-after judgment when the original cause of action was such as to authorize a plaintiff to an order for the arrest of the defendant, but that the •action should be brought upon the foreign judgment. After the plain- ■ tiffs elected to take judgment on contract, they were not at liberty to make an arrest upon it, or upon the fraud which entered into the contract. They have elected their remedy. Caylus v. Railroad Co., 76 N. Y. 609; Moller v. Tuska, 87 N. Y. 166. A new judgment recov- • ered herein in this state would not be for the same cause of action as that in the Pennsylvania judgment. The order should be reversed, with $10 costs and disbursements. All concur.