Schwartz v. Schwartz , 73 N.Y.S. 935 ( 1901 )

Kenefick, J.

This is an action for a separation. The order of arrest was granted on the sole ground that the action is one to recover damages for a personal injury under section 549 of the Code of Civil Procedure. The basis of that section of the present Code is section 179 of the Code of Procedure. The language of section 549, relating to the right to arrest in actions for a personal injury, is substantially similar to the language used in section 179.

Under the last named section it was held in the case of Jamieson v. Jamieson, 11 Hun, 38, that an action for separation on the ground of cruel and inhuman treatment was an action for a personal injury and an order of arrest could be lawfully upheld therein.

If this were an open question I should be inclined to disagree with the reasoning of the court in the last named case, but I am constrained to follow the precedent established, and therefore the motion to vacate the order of arrest is denied, but the amount of the undertaking is reduced to $2,500.

Ordered accordingly.