This being an action to recover a penalty, the order of arrest was properly granted. The affidavit of the plaintiff showed that a sufficient cause of action existed against the defendant. That only was prerequisite to the right to obtain the order (Code Civ. Pro., §§ 549-556, 557.)
The defendant, upon his affidavit controverting the existence of the cause of action, obtained an order vacating such order of' arrest. We think that the latter order was improperly granted. Where the facts on which the order of arrest is granted are not extrinsic to the cause of action, but the nature of the action alone constitutes the authority for granting it, it should not be vacated *64upon, evidence tending to disprove the canse of action. The merits •of the controversy should not be determined upon affidavits, but .should be allowed to await the trial of the action. (Welch v. Winterburn, 14 Hun, 518.)
Order appealed from reversed, with $10 costs, and disbursements.
Present — Barnard, P. J., Gilbert and Dykman, JJ.Order vacating order of arrest reversed, with costs and disbursements.