Opinion
October 22, 1959
Allen McCarthy for Norman J. O'Connor, plaintiff.
Arnold D. Naidich for defendants.
Motion for order of arrest of one of the defendants herein, a woman. The complaint charges that the defendants made false and fraudulent representations in connection with the sale of stock of Contact Uranium Mines, Inc. to plaintiffs. The moving plaintiff together with other plaintiffs recovered judgment thereunder against the defendants. Execution issued against their property has been returned unsatisfied. The nature of the action as pleaded is one which spells out "wilful injury" to the property of plaintiff within the meaning of section 826 of the Civil Practice Act. "Whether or not the action involves a willful injury only affects the right to procure an order of arrest of a woman, under section 829 of the Civil Practice Act. It has nothing to do with issuing a body execution against a woman which is covered by section 764 and section 765 of that act" ( Ritz Carlton Apts. v. Fried, 134 Misc. 347, 348; see, also, Civ. Prac. Act, §§ 765, 829).
Concededly no order of arrest has ever been granted in this action, and since the relief herein requested is based on the nature of the action rather than on extrinsic facts (cf. Civ. Prac. Act, § 827), it may not be granted after final judgment (Civ. Prac. Act, § 818; 10 Carmody-Wait, New York Practice, p. 345). It appears to be the policy of the Legislature to grant women defendants a degree of immunity with respect to civil arrests. Nothing has been shown herein to bring this matter within permissible exceptions.
The motion is therefore denied.