Lembke's Case — 11 Abb. Pr. 72

Majority

p. 72

LEMBKE’S CASE.

Supreme Court, First District;

Special Term, December, 1870.

Headnote

Execution Against the Peesoh.—Abbest.

Where the complaint is for a wrongful conversion of property, execution may issue against the person, although no order of arrest was served, and although the complaint alleges a contract of bailment, and demands judgment for the sum received by defendant as bailee.^[1]

The case of Wood v. Henry, 40 N. Y., 124 , distinguished.

This was an application by the petitioner, Charles Lembke, to be discharged from imprisonment on an execution issued against the person of the defendant upon a judgment obtained July 30, 1870, in favor of Albert Berger and others, plaintiffs,- against the petitioner, defendant in that action, entered by default for want of an answer.

The summons in the action was for a money demand on contract, the complaint alleging in substance “that plaintiffs delivered to defendant a certain quantity of merchandise to be sold on commission ; that defendant sold the same, as plaintiffs were informed and believed, and that defendant had not paid over the proceeds of such sale to plaintiffs, but had wrongfully converted the same to his own use,” and demanded judgment foi so much money with interest, &c.

p. 73

Upon the ordinary proof of service the plaintiffs entered up the judgment, asina case where no application therefor need be made to the court. An execution against the property having been returned unsatisfied, plaintiffs issued an execution on such judgment against the person of the petitioner.

No order of arrest had ever been obtained.

Joseph P. Joachimsen, for the petitioner.

Brown, Hall & Vanderpoel, for the sheriff.

The prisoner was arrested on a ca. sa., issued after a return of fi. fa., without any previous order of arrest, and he asks to be discharged on habeas corpus, on the ground that such arrest was illegal.

The complaint charges that the defendant received from the plaintiffs, goods and merchandise belonging to them, to be sold on consignment, and the proceeds paid to the plaintiffs; that the defendant sold the goods and has refused to pay the proceeds on demand, and has wrongfully converted the same to his own use.

There can be no doubt that this is a cause of action entitling the plaintiffs to an order of arrest against the defendant.

It is equivalent to the old action of trover, for which the party was liable to arrest without any order. A party may now be arrested on execution where the complaint contains a cause of action showing one of the causes of arrest, under section 179 (Code, § 288).

By section 179, subdivision 1, a party may be arrested for wrongfully converting property.

These are the words charged in the complaint. This case differs from that of Wood v. Henry, 40 N. Y.,

p. 74

124 . The complaint there did not charge any conversion of property, but was merely founded on contract.

The application for the discharge of the prisoner must be denied.

Application denied.