38 N.Y. 18, Mott v. Union Bank

• Citation: 38 N.Y. 18
• Party Name: GARRET S. MOTT, Appellant, v. THE UNION BANK OF THE CITY OF NEW YORK, Respondent.
• Case Date: September 01, 1867
• Court: New York Court of Appeals

Page 18

38 N.Y. 18

GARRET S. MOTT, Appellant,

v.

THE UNION BANK OF THE CITY OF NEW YORK, Respondent.

New York Court of Appeal

September 1, 1867

PARKER, J.

This action was brought in the Superior Court of the city of New York, for an alleged false imprisonment of the plaintiff. The defendant justified under an order of arrest made on the 8th day of December, 1858, by a justice of the Supreme Court, in an action commenced in that court by this defendant against this plaintiff and Jacob H. Mott for fraud.

An order of arrest was obtained at the commencement of that action, under which Jacob H. Mott was arrested and held to bail, but this plaintiff was not found. He subsequently appeared in the action by attorney, but put in no answer to the complaint, and, on the 5th day of November, 1858, judgment was taken against him by default. After this, and on the 11th day of November, 1858, he moved the court to set aside the default and judgment, whereupon the following order was made: "It is ordered that the said defendant have leave to serve his answer to the complaint herein within ten days from the date of the entry of this order, and to proceed with his defense in this action, upon payment to the plaintiff's attorney of $22.50, being costs of default and of this motion, and also the fees and charges of the sheriff upon the execution issued in this action; and it is further ordered, that said judgment stand as security for the alleged indebtedness of the said defendant to the plaintiff. " He accordingly paid the costs, fees and charges mentioned in the order, and served his answer to the complaint.

Page 19

On the 8th of December following, the order of arrest, upon which he was arrested and held to bail, and under which the defendant justifies, was obtained, and the plaintiff was arrested, and, in default of bail, committed to jail. For that arrest and imprisonment this action is brought.

Upon the trial, the court held that the defendant was justified by the order, and dismissed the complaint, to which the plaintiff excepted. The court ordered the exceptions to be heard in the first instance at the General Term, and that, in the mean time, judgment be suspended. On hearing the exceptions, the General Term denied a new trial, and gave judgment for the defendant, from which judgment this appeal is brought. Unless the order of arrest, upon which the plaintiff was arrested and imprisoned...