Bonn v. Bloch.

But there can be no question as to who would be the contracting parties in the case of a bond. A perusal of the bond will show that the obligor or obligors are held and firmly bound unto "the People of the State of New York." It is very plain that the contract is between the surety and the People.

I think there can be no question but what the husband or wife can go on each other's bond; in the case. of the wife, if she has a separate estate; and the decision of Judge LAWRENCE should be disregarded.

BONN, APPELLANT, v. BLOCH, RESPONDENT.

CITY COURT OF NEW YORK, GENERAL TERM. DECEMBER, 1887.

$$ 549, 567, 568.

Arrest When order of, vacated in action for breach of promise to marry, because of defendant's willingness to perform the same.

Under the Code of Civil Procedure, section 549, as amended in 1886, the plaintiff in an action in which the arrest of the defendant is sought, is bound to allege in his complaint and prove upon the trial the facts constituting the ground of arrest in every action, so that practically there is now no such thing as an arrest on facts outside of the cause of action; and to that extent the cause of arrest and the cause of action are always identical, and it is manifestly an error to say that an order of arrest cannot be discharged. Although it may be that where the affidavits on which the motions to discharge an order of arrest is made are merely conflicting, it would be the safer practice to deny the motion, where the facts on the behalf of the defendant are overwhelming, there is no reason why the court should not act at once and grant the discharge.

Where, in an action for a breach of promise to marry, the defendant sought his discharge from arrest upon affidavits admitting the promise but denying the breach and offering to marry the plaintiff, which

Bonn v. Bloch.

offer she rejected,—Held, that a motion to discharge the order of arrest was properly granted, and should not be reversed on appeal. (Decided December 21, 1887.)

Appeal by plaintiff from an order of the special term discharging the defendant from arrest and imprisonment herein, under an order of arrest.

This action was commenced June 4, 1887, to recover damages for a breach of promise to marry. On the same day, an order of arrest was granted, in which the bail was taxed at the sum of $1,000. The defendant was arrested under said order on June 6, 1887. On the same day, upon his own affidavit in which he stated: "I am the defendant herein, and was arrested; I promised to marry plaintiff, but she refused to marry me; I am now ready and willing to marry plaintiff; I am now in actual custody, and, therefore, pray that the foregoing order to show cause be granted; no previous application has been made," he obtained an order to show cause, returnable on the same day, why he should not be discharged from arrest. In answer to this affidavit, the plaintiff produced her own affidavit and that of her brother, stating that the defendant said that if the plaintiff sued him he would offer to marry her and then leave for parts unknown. After hearing counsel, the justice presiding at special term granted the motion, filing the following memorandum of his reasons for so doing.

NEHRBAS, J.-Order of arrest vacated and prisoner discharged. The defendant being willing to marry plaintiff, who now refuses to enter into the marriage contract, the defendant should not be confined in jail.

The plaintiff thereafter took this appeal.

David Tim, for plaintiff, appellant.

After the defendant refused to fulfill his promise at the

• Bonn v. Bloch.

appointed time, the contract was broken, and the plaintiff's right of action accrued.

When a party is guilty of a breach of contract, and by his own act and deeds, annuls the contract, the other contracting party is not required or compelled to fulfill his or her part of the contract, even though the violating party offers to comply with the terms of the contract. Rouse v. Lewis, 4 Abb. Ct. App. Dec 121; Neville v. Frost, 2 E. D. Smith, 62; Blewett v. Baker, 37 N. Y. Super. (5 J. & S. 23; De Pyster v. Pulver, 3 Barb. 284. "After one of the parties to an agreement has refused to execute the same on his part, and has declared his inability to do so, he cannot insist upon a performance there of by the other party." See Liefman v. Soloman, 7 Abb. Pr. 409 note. "An offer to renew the engagement of marriage is no defense to an action for the breach." Where the arrest and cause of action are identical, the court will not discharge the defendant from arrest. Warshauer v. Webb, 1 N. Y. St. Rep. 130; Welch v. Winterburn, 14 Hun, 518; Stuyvesant v. Bowran, 34 How. Pr. 51; Nelson v. Blanchfield, 54 Barb. 630; Peck v. Lombard, 22 Hun, 63.

P. Gratz, for defendant-respondent.

HALL, J-This action is brought to recover damges for a breach of promise of marriage. Defendant was arrested and held in bail; the motion was made to vacate the order of arrest on an affidavit by defendant admitting the promise of marriage; he alleged that plaintiff had refused to marry deponent, and also renewed his offer to marry plaintiff, which offer plaintiff again refused, whereupon the justice at special term discharged the order of arrest. Since the latest amendment of the Code of Civil Procedure, the plaintiff is bound to allege in his complaint and prove upon the trial the facts constituting the grounds of arrest in every action, so that it may be said that there is now no such thing as an arrest on facts outside of the

Clark . Lockard.

cause of action; and to that extent the cause of arrest and the cause of action are always identical, and it is manifestly an error to say that an order of arrest cannot be discharged in such a case; for that would be saying in effect, that a person should be arrested in a civil action and must be kept imprisoned, if unable to give bail, until he could have a trial.

It may be conceded that where the affidavits on the motion to discharge an order of arrest were merely conflicting it would be safe practice to deny the motion; but where the facts on behalf of the defendant are overwhelming, there is no reason why the court should not act at once and discharge the order.

In the case at bar, the plaintiff swore to the promise of marriage and its breach by defendant. The defendant admitted the promise, but denies any breach by him, and sets up a breach by plaintiff, and offers to marry her and carry out his promise, which she refused. Upon this state of facts, the justice at special term evidently concluded that the defendant's theory of the matter was correct and denied it, and we see no reason to disturb the decision. Order must be affirmed, with costs to respondent.

CLARK, RESPONDENT, v. LOCKARD, APPELLANT. CITY COURT OF BROOKLYN, GENERAL TERM, DECEMBER, 1887. §§ 399, 435.

Limitation to action-Effect of substituted service within sixty days after issuing of summons to save claim from bar of statute

Construction of statute.

In considering any part of a statute the whole must be considered. The different parts reflect light on each other, and, if possible, such construction is to be made as will avoid inconsistency and subserve justice and right.

Clark v. Lockard.

Where the summons in an action upon a claim was issued to the sheriff two days before the period limited by statute within which an action upon the cause of action set forth in the complaint could be brought, and the summons was thereafter within sixty days after it was so issued served by substituted service pursuant to an order duly made, -Held, that such service of the summons was sufficient to make the issuing thereof equivalent to the commencement of an action within the meaning of section 399 of the Code of Civil Procedure,-providing that the issuing of a summons to the sheriff within the time limit: ed by law for the commencement of an action, followed, within sixty days after the expiration of the time limited, by personal service thereof or by the first publication of the summons was equivalent to the commencement of an action,-that substituted service and service by publication are now equivalent in their effect upon proceedings in an action.

Bogert v. Swezey (26 Hun, 463), followed. Ferry v. Plummer (unreported); Blossom v. Estes (84 N. Y. 615); Catlin v. Ricketts (31 N. Y. 668, affirming 27 Hun, 242), followed.

Under the Code of Procedure, substituted service in an action was equivalent to personal service thereof; but under the Code of Civil Procedure substituted service is not equivalent to personal service; but is equivalent, in its effect upon the proceedings in an action, to service by publication.

(Decided, December 30, 1887.)

Appeal by defendant from a judgment in favor of the plaintiff rendered in an action upon a promissory note. The opinion states the facts.

Martin E. Halpin, for defendant-appellant.

In Bogert v. Swezey (26 Hun, 463) the court say: "The language of the section is very plain. It requires one of the two modes of service,-to wit, personal service or service by publication. It says nothing of substituted service. These three modes of service are equally well known to the Code. The express mention of two and the omission of all reference to the other, lead to the inference that the legislature intended to exclude the mode not named. Neither of these three is the precise equivalent of the other."