p. 357New York Superior Court; At Chambers,Headnote
Action foe Chattels.—Right to Execution against Person.On a judgment in an action to compel the delivery of specific personal property, an execution against the person can be issued only when the defendant has been arrested—under section 179 of the Code.
Under section 282 of the Code, as amended in 1862, no execution against the person can issue, unless an order of arrest has been served, or the complaint contains a statement bringing the case within section 179 of the Code.
Motion by plaintiff to set aside an execution against his person.
This action was brought by John Purchase against George F. Bellows, to recover the possession of certain personal property alleged to be wrongfully detained, with damages for its detention. Judgment was rendered in favor of the defendant for the costs of the action. After an execution upon this judgment, issued against the property of the plaintiff, had been returned, the defendant issued an execution against plaintiff’s person. The plaintiff now moved to set aside this execution.
T. Stevenson, for the plaintiff.
W. Wells, for the defendant.
The summons in this action is for the relief demanded in the complaint. That relief, is the recovery of the possession of certain specified property, or its value in case a delivery cannot be had, and damages for its detention. The cause of action set out in the complaint is the detention of such property, wrongfully, by the defendant.
The section of the Code, authorizing orders of arrest (§ 179), contains several subdivisions. The first provides for actions for the recovery of damages in a cause of action not arising on contract. The third, for actions to recover possession of personal
p. 358property. One of the actions enumerated under the first subdivision is, where it is for wrongfully taking, detaining, or converting property. Under the third subdivision, there can he no order of arrest, unless the property has been assigned after suit brought, with intent that it should not be taken by the sheriff, or to deprive the plaintiff of the benefit of it. (Mulvey
a. Davison, 8
How. Pr., 111 .) The complaint in an action under the first subdivision would show whether the plaintiff was entitled to execution against the person; if he succeeded in his action, under the third subdivision, it would not. The intent in removing the property claimed, is only to be determined by affidavits, under section 178 ; and the order must be made before judgment, by section 183.
The amendment passed in 1862, of section 288, provides, that no execution shall issue, unless an order of arrest has been served, or unless the complaint contains a statement bringing the case within section 179. In this case neither was done, and, therefore, the plaintiff is not subject to arrest. The law was, probably, the same before the amendment, and the látter may be regarded as merely declaratory. (Mulvey a. Davison, supra.)
The execution must be set aside, without costs, on the plaintiff stipulating to bring no action for the arrest.