COURT OF APPEALS.

#### Bowery National Bank, respondent, agt. Abram Duryea, appellant.

*Order of arrest—what must affirmatively appea/r to justify the vacating of, under section*558 *of the Code of Oivil Procedure—Hxtrinsic facts upon which the order is granted not to he inserted in the complaint.*

Under the Code of Civil Procedure an order of arrest may be obtained in two classes of cases: *First,*in those where the cause of action is identical with the cause of arrest, and *second,*in those where facts extrinsic to the cause of action constitute the cause of arrest. In the latter class of cases it is improper to allege in the complaint those extrinsic facts.

To justify the vacating of an order of arrest under the last clause of section 558 of the Code of Civil Procedure, it must *affirmatively*appear by the complaint that the cause of action is such that in no event could the defendant be arrested within the provisions of either section 549 or 650 *(Ajjvrming 8. 0.,*55 *How.,*88).

*September,*1878.

This was an appeal from 'an order of the general term of the supreme court of the first department, reversing an order made at special term vacating the order of arrest granted in the action, on the ground that it was the intention of the legislature, by the last clause of section 558 of the Code of Oivil Procedure, to compel a party to insert in his complaint the extrinsic facts upon which the order of arrest was granted, that the defendant might take issue thereon and have the same tried by a jury.

*Abraham Sling,*for respondents.

*William M. Ivims,*for appellant.

*43Hand, *J.*

The appellant -insists that the new Oode has effected a great change in the law of arrest in civil actions, and that under the five hundred and fifty-eighth section an order of arrest must be vacated unless the cause of arrest appears in every case in the complaint itself. The grounds for this claim were very fully and ingeniously presented to us by the counsel for the defendant, but after full consideration I am unable to adopt such a construction of the statute. I think the court below were-right and that its order must be affirmed.

It is urged that the intention of the legislature was to do away with the alleged anomaly previously existing of compelling defendants to litigate a question involving their personal liberty, without a jury, before the court upon affidavits, while entitled to a jury trial upon the much less important questions of liability under contracts to pay money and the like. That it was intended by the section, under consideration to require plaintiff to insert in the complaint not only his cause of action but a statement of the facts upon which he relies to entitle him to arrest the defendant, although extrinsic to the cause of action, and thus to give the defendant the opportunity to take issue upon them alone, and have the verdict of a jury thereon. In an action for money loaned, as in the present case, where such loan and the non-payment thereof is the sole cause of action, but the plaintiff has procured an order of arrest upon affidavits showing fraudulent representation of the defendant as to his circumstances at the time of contracting the loan, the contention of the appellant necessarily goes the length that the complaint must set out these fraudulent representations, and the defendant, admitting the cause of action, may take issue upon the falsity of the representations alone, and have a jury trial thereon.

It is impossible to believe that so sweeping a revolution in the method of pleading in, and conducting the trial of, actions upon contract would be introduced without much plainer, more specific and unmistakable language in the statute. In fact, *44there is no provision for such trials or for the proper judgments to be entered upon the verdicts therein, or for such interpolations in the pleadings.

The latter clause of the section *(Code, sec.*558) provides thatat any time after the filing and service of the complaint the order of arrest must be vacated, on motion, if the complaint shows that the case is not one of those mentioned in sections 549, 550 of this act.”

Section 549 enumerates cases where the right to arrest* depends upon the nature of the action, and section 550 those where the cause of arrest may be extrinsic and *dehors*the cause of action.

It was held by the special term that the complaint in the present case shows affirmatively that the case was not one of those mentioned in sections 549, 550, in as much as it alleged a simple breach of contract to pay a loan, for which neither section authorized an arrest. The counsel for the appellant, fiowever, as I understand him, rather insists that the order of arrest must be vacated when the complaint *(as in this ease) fails*to show affirmatively that the case *is*one of those mentioned in these sections, and construes the language of section 558 as if its last clause read, “ if the complaint does *not*show that the case *is*one of those mentioned in sections 549, 550.”

It seems to us that the only proper interpretation of the words is, that the order is to be vacated when the complaint shows affirmatively that the case is not one of those mentioned in the two specified sections. And where the action is one of those mentioned in section 550, and the complaint contains only a statement of the cause of action and not the extrinsic facts set forth in the affidavits for the.order of arrest, it does not thereby show affirmatively that the case is not one of those mentioned in sections 549 or 550.

On the contrary, it shows that it may be one of those mentioned in the latter section.

It cannot be justly said that this interpretation necessarily confines the operation of section 558 to actions under section *45549, and makes its references to section 550 wholly without effect, for, in many actions under the latter for money received, for instance, the statement of the cause of action itself might show that the money was not received in a fiduciary capacity.

An insuperable objection to the view of this section urged by the appellant is, that many of the causes of arrest mentioned in section 550 may come into existence after the complaint is served and the cause at issue, and the plaintiff be entitled to an order of arrest thereon, although his complaint was framed before they arose.

To this the answer suggested is, that by a change of the Code as to supplemental pleadings it is made imperative upon the court to permit a supplemental complaint to be filed in a proper case, and thus this contingency is provided for *(Code, sec.*544); but this court has held that the change in the phraseology of this section has not changed the law as to allowing supplemental complaints; and if this were otherwise, we cannot accede to the' proposition that the statute plainly and expressly authorizing an order of arrest upon affidavit for matters occurring after issue joined, by implication merely, the power to grant such order depends upon the plaintiff’s procuring, upon notice, leave to serve, and 'serving, a supplemental complaint, setting up such new matter. There is no clause in the statute permitting the insertion of such extraneous matter in a pleading, whether original or supplemental. The new Code, as well as the old, confines the complaint to a *“*plain and concise statement of the facts constituting the cause of action” (Code, *sec.*481), and there is no propriety in inserting in the supplemental complaint any new allegations other than those material to the cause of action.

The order of the general term must be affirmed, with costs.

All concur, except OsmcE, Oh. J., not voting, Miller and Eael, JJ., absent.