#### Elsie A. H. Kimball, Resp’t, *v.*Jared Flagg, App’lt.

*(New York Common Pleas, General Term,*

*Filed February 3, 1890.)*

Abbest—Conditions on vacating obdeb.

When an order of arrest is vacated on plaintiff’s papers upon purely technical grounds, and the papers themselves show that no malice was intended, the court is justified in imposing as a condition that defendant shall not sue for damages in consequence of the arrest.

Appeal from a condition attached to an order vacating an order of arrest, that defendant stipulate not to bring any action for damages either upon the undertaking or against the plaintiff in consequence of the arrest.

The following opinion was delivered on granting the order:

Yam Hoesem, J.—The complaint is not verified in such a manner that it can be used as an affidavit. We must, therefore, look to the affidavits as the sole foundation for the order of arrest.

The affidavit of the plaintiff alleges that the defendant obtained certain moneys from the plaintiff “ by fraud, deceit, and false and fraudulent representations, as more fully appears by the complaint” That allegation is not sufficiently definite and certain to sustain the order of arrest.

The complaint complains, first, that the defendant obtained a loan of $3,000 from the plaintiff by the false pretense that a policy of life insurance which he offered as security for the loan was a full paid policy; whereas, in truth and in fact, nothing, as plaintiff has been informed and believes, was ever paid upon it.

The sources of information are not given, nor is any reason presented for not disclosing from whom, or in what way, that information was obtained.

There is a second cause of action, namely, a cause of action for misappropriating money, which it is alleged that the defendant received for the purpose of paying it out for furniture to be purchased for the plaintiff. This second cause of action is not for deceit, fraud, or false and fraudulent representations, but for embezzling money.

The affidavit does not, therefore, derive any support from the complaint, so far as the second cause of action is concerned.

It results, therefore, that there is no affidavit to warrant an arrest for the second cause of action.

There are in the complaint allegations of fraud that do not bear upon either of the causes of action set forth in the complaint They are not to be regarded, because they are immaterial and irrelevant to the relief that the plaintiff is seeking.

Whatever the merits may be, the defects that I have pointed out, which, though technical, nevertheless are substantial, make it impossible to sustain the order of arrest.

*491The order of arrest must be vacated, with ten dollars costs to the defendant to abide the event.

*August P.*Wagener, for app’lt; *Edward M.*Lee, for resp’t.

Bookstaver, J.

The appellant contends the court had no power to impose a condition on vacating the order of arrest on the plaintiff’s own papers. It may be conceded that when the order of arrest is vacated on plaintiff’s papers where the action is not one in which an order of arrest cannot be issued, or where it is made without authority in law, such condition cannot be imposed, yet it does not follow that such a condition may not be imposed in any case; as a matter of fact it is often imposed where the court is satisfied that the arrest was without malice and upon probable cause. In the present case the learned judge who vacated the order and imposed the condition, expressly says he did so on grounds purely technical, but which he felt bound to observe, and the papers themselves show no malice was intended.

We, therefore, think he was justified in imposing the condition,17 and that the order should be affirmed, with ten dollars costs.

Bischoff, J., concurs.