(Supreme Court, Appellate Division, Third Department.Headnote
1. Execution against the Person—Action to Recover Chattels and Damages.Code Civ. Proc. § 3026, provides that if the judgment was recovered in either of the actions specified in section 2895, subds. 1, 2 (which do not include a claim for damages in an action to recover a chattel), or if an order for arrest was granted and was executed in a case specified in section 2895, subd. 3 (which includes an action to recover .a chattel), the execution must also command an execution against the person in case sufficient personal property be not found. Held that, in an action to recover chattels with damages for their detention, where no order of arrest was issued, defendant is not entitled to an execution against the person of plaintiff for the costs.
In an action to recover chattels and damages for their detention, an execution against the person cannot be issued on either demand unless it can be issued on both.
Appeal from Albany county court.
Application by Frank H. Short for a writ of habeas corpus to inquire into the cause of his imprisonment under an execution against the person on a judgment against him, as plaintiff, for costs. From an order discharging the petitioner, Aaron B. Sfcutt, the original defendant, appeals.
Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.J. S. Frost, for appellant.
P. C. Dugan, for respondent.
The order appealed from must be ¿firmed, because the action was brought in a justice’s court to recover chattels, with damages for their detention. No order of arrest was issued, and therefore, if plaintiff had recovered, he would not have been entitled to an execution against the person of defendant upon account of the chattels (Code Civ. Proc. § 3026); and he was not entitled to an order of arrest under either subdivision 1 or 2 of section 2895, and therefore not entitled to an execution against the person (section 3026), upon account of damages for the wrongful taking and detention of the chattels, because of the exception stated in the section last cited: “But this subdivision does not apply to a claim for damages in an •action to recover a chattel.” Besides, unless the execution can issue upon both demands it can issue upon neither. Bowen v. True, 53 N. Y. 640 .
Order affirmed, with $10 costs and disbursements. All concur.