Title to property cannot be acquired through a fraud, much less through a crime. (Riggs v. Palmer, 115 N. Y. 506.) The act by which the appellant acquired the plaintiff’s money was a crime (Penal Code, tit. 10, chap. 8), and money so acquired is wrongfully taken and wrongfully detained, and an order of arrest is authorized by subdivision 2 of section 549 of the Code of Civil Procedure in such cases. This view of the' question was not considered in Tompkins v. Smith (16 J. & S. 113; S. C., 62 How. Pr. 499; affd., 89 N. Y. 602, by a divided court and without an opinion).
Again, a motion to vacate an order of arrest cannot be made until *480the defendant has been arrested. (Code Civ. Proc. § 567 Kern v. Raekow, 44 How. Pr. 443 ; Gedney v. Haas, 50 id. 310; Van Tassel v. Marks, 4 Month. Law Bull. 19. Martin v. Gross, 24 J. & S. 512, not followed.) The case last cited was decided on the ground that section 568 of the Code of Civil Procedure provides that a motion to vacate an order of arrest “ may be founded only upon the jiapers upon which it is granted,” and that the provision of section 567 that the motion can be made only after arrest conflicts with section 568. Had the order been executed the return of the sheriff would show the fact, and the affidavit of the fact of arrest would be quite unnecessary. Besides, had the defendant moved -on the original papers, accompanied by his affidavit, showing that he had been arrested, the plaintiff could not .have supported the arrest by new affidavits showing grounds therefor ; - at most he could be permitted! only .to deny that the defendant had been arrested. It not appearing that the order of arrest, the papers on which it was granted, or the summons had been served on the defendant, the motion to vacate the order was prematurely made.
The order of the Special Term denying the motion to vacate the order should be affirmed, with ten dollars costs and disbursements.
Green, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to vacate the order of arrest granted.