By the Court,
Clerke, P. J.
As to the facts upon which the order of arrest.was based, and which constitute the gist of the action, we would, in ordinary eases, allow the
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former to stand and' abide the trial of the issues. Their truth or falsity, in an action of tort, should never be decided on a motion. But, in this case, after the perpetration of the alleged frauds, there was a settlement between •the parties; the plaintiff accepting the defendant’s note for $700, 100 shares of Combination Silver stock, and a due-bill for 200 shares of that stock. This was a waiver of his right to arrest the defendant, and a condonation of the tort.
The order should be reversed, with costs.
Clerke, Sutherland and Cardozo, Justices.]