Farrelly v. Hubbard

Headnote

Execution against Person—Issuance on Justice’s Judgment.

One who Is authorized by another to receive money for and pay it over to him is not, on failure to pay over the money received, guilty of a wrongful “detention or conversion of personal property” (Code Civ. Proc. § 2895, subd. 2) on a judgment in a justice’s court, for which cause of action Code Civ. Proc. § 3026, provides that an execution against a person may be issued; but he acts in a fiduciary capacity in receiving such money (Code Civ. Proc. § 2895, subd. 3), in which case section 3026 provides that execution against the person on a justice’s judgment can be issued only when an order of arrest has been granted.

Appeal from special term, Orange county.

Action by John H. Farrelly against George J. Hubbard to recover damages for false imprisonment. From an interlocutory judgment entered on decision sustaining a demurrer to a matter of justification set forth in the answer, defendant appeals.

Affirmed.

The opinion of Mr. Justice BROWN, sustaining the demurrer, is as follows:

Section 3026 of the Code of Civil Procedure regulates the issuing of executions upon judgments rendered in justice courts. Executions against the person can be issued in actions specified in subdivisions 1 and 2 of section 2895, or when an order of arrest has been issued under subdivision 3 of that section. No order of arrest was issued in the action against Farrelly. In my opinion, the action against him fell within subdivision 3. His receipt of the money from the railroad company was as Hubbard’s agent. He received it in a fiduciary capacity. The action against him could not be said to have been for conversion of personal property. That expression has reference to specific articles of property owned by a person other than the one who is charged with converting them. It does not apply to money, the receipt of which creates only a debt to another. Money in bills, checks, or coin has no earmarks, and, when it is received by the consent of another, the legal obligation thus created is discharged by paying the debt It is never necessary to repay the identical bills or coin received. Farrelly had Hubbard’s consent to receive his wages, and his duty was to pay the amount to Hubbard, but he was under no duty to turn over to him the same checks or bills that he received from the railroad company. For his failure to pay the debt he could have been arrested under subdivision 3 of section 2895 of the Code, but, unless an order of arrest was issued, an execution against his person could not be issued upon a judgment recovered for the debt. The Code authorizes a demurrer to an answer where the defense pleaded is insufficient in law, and, as the answer in this case sets out all the facts, the question of the justification is one of law solely, and is properly before the court. Segelken v. Meyer, 94

N. Y. 473, and other cases cited by the plaintiff, are not directly in point upon the question discussed, as sections 549 and 550 of the Code were amended in 1886, and the rule applicable in the cases cited is now somewhat changed from what it was when Segelken v. Meyer was decided. See Moffatt v. Fulton, 132 N. Y. 507 , 30 N. E. 992 . But, for reasons stated, I think the demurrer must be sustained. Plaintiff is allowed costs.