Opinion
April, 1907.
W.J. Kelley, for motion.
Charles W. Sinnott, opposed.
The motion to vacate the order of arrest being based upon the original papers upon which the order of arrest was granted it is immaterial whether the defendant was arrested or not. Martin v. Gross, 56 N.Y. Super. Ct. 512; Staub v. Henry, 16 A.D. 476. In the latter case the dissenting opinion indicates that the reason why the minority of the justices in that case did not vote to vacate the order of arrest was that the defendant had not been arrested under the process, and that the motion to vacate was premature. It is evident, however, that the majority of the court must have thought otherwise, even if they did not discuss the point, since the order was reversed. The affidavit upon which the order was founded seems to me to be insufficient to warrant its issuance. It expressly appears that the action is brought against the defendant under a name which plaintiff asserts is fictitious, and that plaintiff knew his real name. The affidavit is also insufficient in that it omits to state any facts from which the alleged cause of action arises. The order of arrest is vacated, but, in view of the long delay in moving, without costs.
Order vacated, without costs.