Roeber v. Dawson — 21 N.Y. St. Rep. 160

Majority

p. 160

William Roeber, App’lt, v. George W. Dawson, Resp’t.

(City Court of New York, General Term,

Filed December 27, 1888.)

Headnote

1. Practice—As to execution against the person prior to the act op 1886

Under the practice as it existed prior to the act of 1886, amending section 549 of the Civil Code, execution could not be issued against the person of the defendant for conversion of money held by him, in a fiduciary capacity, unless an order of arrest had been obtained prior to the judgment.

3. Same—Execution against the person under § 549 op Code as now AMENDED.

The judgment in such an action, ex delicto, now authorizes an execution against the person without the pre-requisite of an order of arrest.

3 Same—Proper way to enter judgment—Eeeect op irregularity in ENTERING.

The-fact that the plaintiff entered judgment with the clerk, without application to the court, may have rendered the judgment voidable for irregularity, but not void. It could only be attacked by a direct motion founded on the irregularity, but it is good until set aside, and is sufficient to authorize an execution against the person.

Appeal from order vacating execution against the person.

E, P. Wilder, for app’lt; W. O. Me Crea, for resp’t.

The action is for money converted by the defendant as agent in a fiduciary capacity. It was formerly regarded as an action on contract, and the right of arrest extrinsic. (Segelken v. Meyer, 94 N Y., 484 ; Donovan v. Cornell, 8 Civ. Pro. R., 283. The allegation of con-, version was treated as surplusage and not issuable (Id.), and no execution against the person could issue unless an order of arrest had been obtained prior to judgment. Wood v. Henry, 40 N. Y., 124 . Since the amendment made in 1886, to section 549 of the Code, this rule has been changed. The right to arrest in such a case is no longer extrinsic to the cause of action, but is made an essential part of it. The action is (by this section) treated as one ex delicto, for the last portion of section 549 provides that a judgment for the defendant will not bar a new action (ex contractu) to recover the money. The judgment in such an action (ex delicto) authorizes an execution against the person without the pre-requisite of an order to arrest. (Code, § 1487). The court below, in holding otherwise, clearly erred in its construction of section 549, supra. The fact that the plaintiff entered judgment with the clerk, ■without application to the court, may have rendered the judgment voidable for irregularity, but not void. It can only be attacked by a direct motion founded on the irregularity complained of. It is good until set aside, and while

p. 161

in force is sufficient to authorize an execution against the person.

It follows that the order appealed from must be reversed, with costs.