Excerpt from Practice Reports in the Supreme Court and Court of Appfals, Vol. 11: Of the State of New-York
In the other class, under that section, where a defendant is sought to be arrested as an agent for receiving money, the ground of action and the ground of arrest are identical. If the cause of action is shown to be unfounded, the cause of arrest must fail. If the affidavits destroy the allegation of a fiduciary character, the arrest cannot be sustained, although that will not terminate the suit.
Where, in these last mentioned cases, the defendant raises a fair legal presumption that his claim may be supported, the arrest should not be sustained. Under the Code now, a case of arrest - of bail or no bail - may be decided upon affidavits which tend to decide the cause as then presented. (See 2 Selden, 562.)
In this case, the defendant, having been entrusted by the Mexican government with a duty of delicacy and high importance - an agency to pay out and superintend for the plaintiff - which had been accomplished with admitted skill and promptitude; and, under all the facts,
Held, that the defendant showed a right to a compensation, by way of commission from his government - (the amount claimed and withheld by the defendant, being the cause of action and arrest.) But the court must decide, even on a motion to discharge from arrest, how far such a claim can be sustained, and the extent of the compensation so to be allowed the defendant, when the plaintiff appears entitled to some, though not to all that he demands.
Special Term, January and February, 1855.
On motion to discharge the arrest of the defendant, Arrangois.
Daniel Lord, for plaintiff.
John & W. H. Anthon, for defendants.
Hoffman, Justice. The defendant, Francisco de Arrangois, having been arrested under an order made by one of the justices of this court, and given bail to the amount of $60,000, now applies to be discharged upon the insufficiency of the affidavit on which the order was granted, and upon further affidavits and documents on his own part.
The first question relates to the form of the undertaking given upon the arrest, and this materially depends upon the correct understanding of the position of the plaintiff upon the record.
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