refused to deliver the remainder. It then alleged "that defendants have wrongfully detained and converted the same to their own use." The latter allegation was denied by the answer. Held, that the denial created a material issue, including the liability of defendants to personal arrest, and could not be stricken out as frivolous.

APPEAL from an order striking out the defendants' amended answer as frivolous and for judgment in favor of the plaintiff.

Henry S. Bennett, for app'lt; Alexander B. Simonds, for resp't. DANIELS, J.-The complaint sets forth various dealings between the parties in certain mining stocks, and alleging that the defendants held in their possession, for and belonging to the plaintiff, 6,000 shares of the Little Chief Mining Company, 5,000 shares of the Horn Silver Mining Company, and 1,500 shares of the Iron Silver Mining Company. It was also alleged that the plaintiff had tendered to the defendants the balance due to them from him and demanded the delivery of the stock. And that they had delivered to him the 6,000 shares of the Little Chief Mining Company stock, but neglected and refused to deliver the remainder. And the averment is then made "that the defendants have wrongfully detained and converted the same to their own

use.

This averment has evidently been made to legally characterize the defendants' act in neglecting and refusing to deliver the detained shares of stock. It charged a conversion, which before was at most left to mere inference, and may be presumed to have been added to avoid all uncertainty from what had been previously set forth. The object was to implicate the defendants in a positive wrong, for which, if it shall be maintained, they may be personally taken in execution. This was as pointedly denied by the answer which has been stricken out. For its third subdivision in allegation, that the defendants have wrongfully detained and converted the five thousand shares of the Horn Silver Mining Company, and the fifteen hundred shares of the Iron Silver Mining Company to their own use, has been denied. This denial created a material issue, including the liability of the defendants to personal arrest. And it could not regularly be stricken out. Farmers' National Bk., etc., v. Leland, 50 N. Y., 673. But it should be tried in the ordinary course prescribed for that object.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied.

VAN BRUNT, P. J.-It seems to me that the fact that the respondent found it necessary to present so elaborate a brief upon this appeal shows conclusively that the answer was not frivolous. I concur in the reversal of the order, with costs.

BRADY, J., concurs.

JOSEPH H. MCDONALD, Resp't, v. CHARLES E. CONVIS, App'lt. (Supreme Court, General Term, First Department, Filed January 16, 1891.) ARREST-WHEN ORDER WILL NOT BE GRANTED.

The action was brought to recover for moneys advanced to aid in the organization of a corporation, and expended in the conduct of its business.

The affidavit for an order of arrest therein alleged that defendant, by false statements to the effect that the company was incorporated, induced plaintiff to be elected president thereof, to spend money in the conduct of its business and give his time and labor thereto. Held, that as to money expended prior to the time of the alleged organization plaintiff had no cause of action against defendant for fraud and deceit, and that as the complaint contained this cause of action for which defendant could not be arrested, the order of arrest should be vacated.

APPEAL from order denying motion to vacate order of arrest. Robert Sewell, for app'lt; James C. Foley, for resp't.

BRADY, J.-The ground upon which the defendant claims that this order of arrest should be vacated is that a cause of action is contained in the complaint not subjecting the defendant to arrest. The affidavit, which is supposed to contain the evidence upon which the plaintiff claims the right to arrest, contains allegations in respect to representations made by the defendant relating to the proposed organization of the company and the advance of money to aid in that organization. It also contained allegations that Convis procured the certificate of association to be executed, which he undertook to have filed, and to have said association duly incorporated according to law; that Convis reported to the plaintiff that the association had been incorporated, and that thereupon a meeting of the directors was held and the plaintiff permitted himself to be elected president and treasurer of the association; that business was begun and for nearly a year was conducted by the association as though it was incorporated, the plaintiff in the meantime having advanced, paid and laid out sundry sums of money in the conduct of the business. The plaintiff then deposed that the alleged corporation had never been incorporated because the secretary of state refused to file the certificate, and that the plaintiff was compelled immediately to stop all business and close up the said association, whereby the plaintiff suffered pecuniary loss to a large amount besides loss of time, labor and good name and credit as a man of business. The affidavit further states that the defendant falsely and fraudulently, and with intent to deceive and defraud, stated that said corporation was incorporated, when in truth and in fact it was not, and he knew that it was not; and that by reason of his false statements the plaintiff was led and induced to spend the money aforesaid, to give his time and labor, and, worse than all this, to lend his name for so long a time to an illegal enterprise.

It is clear that as to the moneys expended prior to the time of the alleged organization, the plaintiff has no cause of action against Convis for fraud and deceit, as there is nothing contained in the affidavit tending to show that at that time the defendant had been guilty of any fraudulent representations.

It therefore appears that this action is brought to recover moneys for which the defendant could not be arrested even if he might be arrested for the fraudulent representations in respect to the alleged incorporation of the association above mentioned.

Such being the case, the order of arrest must fail because the N. Y. STATE REP., VOL. XXXVI. 69

complaint contains claims as to which the defendant cannot be arrested.

The order should be reversed, with ten dollars costs and disbursements, and the order of arrest vacated.

VAN BRUNT, P. J., and DANIELS, J., concur.

HUGH N. CAMP, Resp't, v. MICHAEL REDMOND, App'lt. (Supreme Court, General Term, First Department, Filed January 16, 1891.) PLEADING-COUNTERCLAIM-Vendor and puRCHASER.

In an action for breach of a contract for purchase of land at a sale by auction which was to be completed at a specified time, the answer alleged, by way of set off and counterclaim, that plaintiff, a month after the specified time, sold the premises to another person, and still retained defendant's deposit on his purchase, and asked that said sum be offset against any recovery, if any, and for judgment for such sum if plaintiff failed to recover. Held, on demurrer, that in the absence of an allegation that he was ready and willing to perform at the time specified defendant could not succeed in his affirmative cause of action, and that the demurrer was properly sustained.

(DANIELS, J., dissents.)

APPEAL from an interlocutory judgment sustaining a demurrer to the defendant's answer.

Harry A. Foster, for app'lt; James C. De La Mare, for resp't.

DANIELS, J. (dissenting)-The action is for damages for the non-performance of a contract made for the sale and purchase of land. The sale was made by auction, and it was to be completed on the 11th of November, 1889. It is alleged in the complaint that the defendant in that respect failed to fulfill the terms of his agreement to accept the deed and otherwise perform on his part. But the ability and readiness of the plaintiff to convey the property has been put in issue by the answer of the defendant.

The defendant then, by way of a set-off, partial defense, and counterclaim, further answered that the ten lots described in the complaint were knocked down to him at public auction, by the plaintiff's agent. And the answer then proceeded to state:

That plaintiff in selling such lots agreed to convey them to the purchaser at such auction sale on receiving the purchase money less sixty per cent. thereof, which could remain on bond and mortgage, at the option of the purchaser.

That the defendant paid to the plaintiff $300 on account of the purchase money.

On information and belief, that on December 10, 1889, plaintiff sold the property at public auction to a third person, and thus put it out of his power to perform his contract and convey the property in fee to the defendant, and that plaintiff retained and still retains $300 paid to him by the defendant on account of the purchase money.

That the defendant is entitled to have the $300 offset against any recovery that the plaintiff may obtain in this action, if any, and if plaintiff should fail to recover, defendant is entitled to recover said $300 from the plaintiff.

Wherefore, the defendant demands judgment against the

plaintiff for the dismissal of the complaint, and the sum of $300, besides the costs of the action.

The plaintiff demurred to this answer, on the ground that it failed to state a cause of action, and the demurrer was sustained by the special term.

No failure to perform the contract has been in any form admitted by the defendant, nor does it appear otherwise than by the allegations of the complaint, upon which issue has been taken by the answer, how the contract was carried along to the month of December, 1889. It cannot be inferred from what has been set forth in this part of the answer, that the defendant was at any time in default on his part. For no such default has been admitted either expressly, or by implication. But it is apparent from this part of the answer that the lots continued to be owned by the plaintiff up to the 10th of December, 1889, and that he then sold them to another person. This put it out of his power to perform the contract he had made for their sale to the defendant. And dispensed with an offer, or the averment of readiness to perform on his part. Weeks v. Little, 89 N. Y., 566; Woolner v. Hill, 93 id., 576. It placed the plaintiff himself in default as the case has in this manner been stated and entitled the defendant to rescind, and recover back the $300 paid by him on the purchase price of the lots. And he had the right to interpose that as a counterclaim in this action. The demurrer, therefore, should not have been sustained. And the judgment should be reversed and the demurrer overruled, with costs, but with leave to the plaintiff to withdraw it, and reply in twenty days on the payment of the costs of the demurrer and the appeal.

VAN BRUNT, P. J.-I cannot concur with the conclusion arrived at by Mr. Justice Daniels that under the facts alleged in the answer the defendant would be, if they were true, entitled to recover the amount of his deposit. The facts seem to be that the plaintiff contracted to convey to the defendant certain real estate and the defendant contracted to pay for the same on the 11th day of November, 1889, and paid $300 down. There is no allegation in the answer setting up counterclaim or set-off that the defendant ever was ready to take the property or that the plaintiff failed in any respect in reference to his part of the contract.

It is urged by Mr. Justice Daniels that the defendant has not admitted that he was in default. This is true, but in his affirmative cause of action he has not alleged that he was ready and willing to perform at the time appointed. It is necessary for him to allege and prove this to succeed in his affirmative cause of action.

All that is alleged is that the plaintiff sold the property to somebody else on the 10th of December. Where a seller makes default the purchaser is not bound to wait forever to dispose of the property to another without giving the purchaser a cause of action. The judgment should be affirmed, with costs.

BRADY, J., concurs.

ABDEL WAHED EL TAZI, Resp't, v. ABRAHAM STEIN, Imp'ld, App'lt.

(Supreme Court, General Term, First Department, Filed January 16, 1891.) DISCOVERY-EXAMINATION BEFORE TRIAL.

A proceeding for the examination of a defendant's books and papers is not authorized under the provisions of the Code for the examination of a party before trial, as the Code and the rules of practice bave specially prescribed other proceedings for the attainment of that end.

APPEAL from order denying motion to set aside an order for the examination of the defendant before the trial, and directing the production by him, at the time fixed for the examination, of the defendant's books of account, and all correspondence between them and Dombie & Levy and Edward Levy relating to the consignment of gums.

J. Hampden Dougherty, for app'lt; Theodore H. Silkman, for resp't.

DANIELS, J.-It is reasonably clear from the affidavits that the chief object for requiring the examination of the defendant as a witness before the trial is to oblige him to produce the books and correspondence of the defendants. It has been intimated in some cases that this proceeding may be authorized under the provisions of the Code of Civil Procedure for the examination of a party at the instance of his adversary before the trial. People v. Dyckman, 24 How., 222; McGuffin v. Dinsmore, 4 Abb. N. C., 241. But as the Code and the rules of practice have specially prescribed other proceedings for the attainment of that end, these decisions were not made upon that degree of consideration which entitle them to be followed as authority. More especially also for the reason that the general term of this court and of the court of common pleas have decided directly the other way, and in conformity to the prescribed practice. De Bary v. Stanley, 5 Daly, 412; Hauseman v. Sterling, 61 Barb., 347.

So far as the application rests on the fact of the anticipated absence of the defendant when the trial shall be had, it is fully met by his affidavit stating that he will not be absent, but will be personally present at the trial. In addition to that the affidavits are not so substantial in their statements as to support the order which has been made. The order should be reversed, with ten dollars costs and the disbursements, and the order for the examination should be vacated.

VAN BRUNT, P. J., and BRADY, J., concur.

THE PEOPLE ex rel. MICHAEL J. O'CONNOR, App'lt, v. DANIEL E. SICKLES, Sheriff, Resp't.

(Supreme Court, General Term, First Department, Filed January 16, 1891.) CONTEMPT-COMMITMENT.

A commitment for contempt in supplementary proceedings, after adjudging relator guilty of contempt and that such contempt impaired, etc., the rights or remedies of the plaintiff, imposed a fine and directed his