At chambers. Action by Harry McBride and Charles F. Droste, partners under the firm name of McBride & Co., against Patrick T. Langan and others, partners under firm name of P. T. Langan & Co. A motion having been made to dismiss the complaint, in that the averment that defendants “ were guilty of a fraud in contracting or incurring the liability” did not state sufficient facts, plaintiff moves for leave to amend. For motion to vacate order of arrest, see ante, 552.
Decided 1890-04-14
Barrett, J.
¶1As upon the other motion I have upheld the order of arrest, there can be no good reason for refusing the amendment. The observations as to jurisdiction made in disposing of the other motion apply to this. It is not a case where we are asked to insert an allegation of fraud in a complaint which is simply upon contract, but in a complaint which attempts to set up fraud, but does it insufficiently. The plaintiffs thought they might plead the language of the statute,1 and certainly the case cited upon the motion looks as though they had some justification for their practice. I think, however, that in that case the court .scarcely meant to go as far as the plaintiffs now contend, and that the observations of the court must be held to refer to the facts actually in the complaint; for clearly the complaint there showed fraud as matter of fact independent of the general averment in the language of the statute. The amendment here asked should be granted, but I cannot see any justification for the suggestion that it should be without terms. The plain*555tiff should be required to pay the trial fee upon the trial which resulted in his withdrawal of a juror for the purpose of making this motion, and $10 costs of this motion.
¶2 Code Civil Proc. N. Y. § 549, subd. 4, provides for arrest “in an action upon contract, express or implied, … where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability. ”
