Asinari v. Volkening.

of proceedings of sale under a judgment in partition or foreclosure. Service of an answer by leaving it in the office of plaintiff's attorney on the last day to answer, after the office is closed and all have left for the day, is insufficient under section 797 of the Code of Civ. Pro., and it may be returned and judgment for want of an answer taken.

On a motion to vacate, noticed on the ground of irregularity merely, the mover is not entitled to appeal to the favor of the court on the merits.

Motion by defendant to vacate a judgment of foreclosure for irregularity.

Helena L. Gillender Asinari, Hester E. Trotter, and Mary H. Mahan, in April, 1877, began separate actions against Henry L. Volkening, Ludwig G. Gloeckner and others, to foreclose various mortgages made by Volkening, amounting to about $42,000, on property situated on Fourth avenue and Sixty-eighth street, in New York city.

The summons and complaint were served on the defendant Gloeckner, the owner of the fee, on April 19, 1877. On May 9, 1877, that being the last day to answer, his attorney obtained an order giving him twenty days further time to serve his answer.

This order was found in the office of the plaintiff's attorneys the next morning, having in some way been left there after the office was closed, and all its occupants had left for the previous day. It was immediately returned with an indorsement thereon that under section 797 of the Code of Civil Procedure, it should have been served by leaving it at the residence of one of the plaintiff's attorneys. Plaintiff's attorneys, however, treated this as an appearance in the action, and gave Gloeckner's attorney notice of application for appointment of referee to compute, and for judgment of foreclosure, which was afterwards rendered for failure of defendants to answer. Thereafter, and on May 25, 1877, an order was granted by Mr. Justice DANIELS for

Asinari v. Volkening.

the plaintiffs to show cause on the 29th of the same month, why the defendant Gloeckner should not be permitted to serve his answer, and all proceedings of the plaintiff had since the granting of the order extending the time to answer should not be vacated as irregular, the said defendant's time to answer not having expired. This order also contained a stay of proceedings. It was dismissed by default of defendant's counsel, with $10 costs, and an order entered to that effect on June 7, 1877.

Gloeckner's attorney having obtained other counsel, an order was granted by Mr. Justice DONOHUE on June 13, for the plaintiffs to show cause on the next day, why the order of June 7 should not be heard. This order stated that the reason the order to show cause was applied for, was because the sale of said property was advertised for June 16. It also contained a stay of proceedings.

Henry C. Denison, (John J. Reilly, attorney), for the motion.

Augustus T. Gillender, opposed.

BARRETT, J.-The motions are still irregular, in that there was a stay of proceedings in the order to show cause, which, under the rule, could only be granted on two days' notice.* But further, the motion was not to be let in upon the merits and upon terms, but strictly to vacate the proceedings for irregularity. Now, there was no irregularity, as the order extending time to answer was not properly served, and was properly returned. Then the motion to vacate was dismissed by default, with costs, and these costs were not paid. The motion to open that motion default ought

* Rule 81. "No order to stay a sale under a judgment in partition, or for the foreclosure of a mortgage, shall be granted or made by a judge out of court, except upon a notice of at least two days to the plaintiff's attorney."

Grimes v. Davison.

not to be granted to permit a motion to vacate for irregularity. It would have been otherwise, perhaps, if there had been in the present order to show cause an appeal to the favor on the merits of the cause. But, although that was argued before me, it was not embraced in the order to show cause, and is therefore not up. The motion must therefore be denied, with $10 costs.

GRIMES v. DAVISON.

N. Y. Supreme Court, First Department; Chambers, October, 1877.

ARREST. EVIDENCE.-MALICIOUS PROSECUTION.

An arrest will not lie upon mere averment, but the plaintiff must make out a prima facie case sufficient to enable him to rest upon the trial.

In an action for malicious prosecution, an affidavit to obtain an order of arrest, must set forth evidence of malice and want of probable cause. A verified complaint or affidavit containing general allegations, is not enough.*

Motion by defendant to vacate an order of arrest. Marion Grimes sued Erastus Davison to recover $10,000 damages for malicious prosecution.

The complaint alleged that defendant, with intent to injure the good name and credit of the plaintiff, falsely and maliciously made complaint against him of forgery, before a justice of the peace in Brooklyn, upon which he was arrested and held under examination for three or four months; that upon examination being had, the genuineness of the note was fully investigated and he was fully discharged from such arrest and im

* Compare Vanderpool v. Kissam, 4 Sandf. 715; Gould v. Sherman, 10 Abb. Pr. 411; Code of Civ. Pro. § 557.

Grimes v. Davison.

prisonment. That subsequently, on a day named, defendant maliciously and without probable cause, and with intent to injure, &c., presented substantially the same charge to the grand jury, who, plaintiff believed, dismissed the charge. That on a date soon after the latter complaint, the defendant maliciously and without probable cause, made the same charge before a police justice in Brooklyn, upon which plaintiff was arrested, and upon an investigation before said justice, the complaint was dismissed, and he was discharged from arrest. The complaint was verified.

Upon the summons and this complaint, and an affidavit stating the same facts in almost identical language, an order of arrest was obtained against the defendant, in June, 1877, when the Code of Procedure was still in force.

The defendant then moved on these papers, that the order of arrest be vacated, on the ground that they were not sufficient to sustain the order.

Henry C. Denison, for the motion.

H. D. Betts, opposed.

BARRETT, J.-No proof is furnished in support of the allegations of facts. Malice is alleged, but no evidence of it is given. Want of probable cause is, at one time alleged, again omitted. Where alleged, it is unsupported by evidence. An arrest will not lie upon mere averment, whether in the form of an affidavit ora complaint. The plaintiff should make out a prima facie case, sufficient to enable him to rest upon the trial. The papers are otherwise very defective, and the order cannot be upheld.

Motion granted, with $10 costs.

Phelps v. Maxwell.

PHELPS v. MAXWELL.

N. Y. Supreme Court, First Department; Chambers, September, 1877.

AFFIDAVIT FOR ARREST.-EVIDENCE.-FALSE REPRESENTATIONS.

PRACTICE.

An affidavit to obtain an order of arrest for false representations, on the ground that the defendant had given a written representation of solvency, &c., several months prior to the sale of goods, made in reliance upon the truth of such representations, should show facts connecting the sales with the declaration.

Such an affidavit, alleging oral statements to the plaintiff, should by a recital of the interview during which they were made, connect them with the actual sales. A general statement of a party that they were made to induce credit is not enough.

Motion to vacate an order of arrest.

This action was brought by George A. Phelps and others against Frederick Maxwell, to recover the sum of $3,660.75, for a quantity of fruit sold by the former to the latter.

An order to arrest the defendant was obtained on an affidavit of one of the plaintiffs, which alleged that in June, 1877, the plaintiffs, relying on the statements and representations of the defendant, in regard to his solvency and property, sold him a quantity of fruit, for which he gave them his promissory notes payable in sixty days; that about a month afterwards they sold him some more fruit, which had never been paid for; "that to induce the plaintiffs to sell and deliver to defendant such fruit, defendant made and left with Brown and Secomb, plaintiff's auctioneers, through whom said last sale was made, a written statement signed by him, the defendant, stating that he had a capital of $14,000, over all liabilities, employed in his business, and that he had assets to the amount of