¶1The order discharging the order of arrest is not conclusively evidence of the termination of the right of arrest. The facts, may yet be proven upon the trial, subjecting the defendant to arrest. Until that shall have taken place, and the suit determined in favor of the defendant, by a failure there, the action is premature. The case was rightly disposed of at the trial, and an affirmance of the judgment must follow.
3 N.Y.S. 858
Ingram v. Root
Decided January 28, 1889
New York Supreme Court · decided 1889-01-28
<p>1. Malicious Prosecution—When Lies—Arrest in Civil Action.</p> <p>Where an order of arrest, alleged to have been obtained by a false and malicious’ affidavit, is vacated on the merits, and no appeal is taken from the order vacating it, an action for malicious prosecution may be maintained without waiting for a termination in favor of the party arrested of the action in which the order of arrest was obtained. Daniels, J . dissenting.</p> <p>2. Same—Pleading—Complaint.</p> <p>But a complaint in the action for malicious prosecution, which does not allege that no appeal has been taken from the order v'acating the order of arrest, is demurrable.</p>
Cited by 1 later decisions — most recently June 1984
1 state decisions
Good law ✅— No negative treatment on recordhow we know
Decided 1889-01-28
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