Morange v. Waldron

Headnote

Order of arrest — Oode, § 179.

The complaint in this action alleged that the defendants were auctioneers, and as such “ sold and delivered, for the account of the plaintiff, divers pieces of furniture; ” that they “ received for the account and benefit of the plaintiff, in their

capacity of auctioneers, the sum of $271.78, and that there remains due and owing from the defendants to the plaintiff the sum of $210.67, with the interest from 26th April, 1872, and which said sum hath been often demanded but refused.” Judgment having been entered by default, an execution against the person was issued, no order of arrest having been made in the action. Held, that the execution was properly set aside; that it did not appear from the complaint that it was the .duty of the defendant to pay over the identical money received, but simply that he had received a certain sum of money, on account, of the plaintiff, which he could pay with any funds, subject to his use and control.

To render a person liable to arrest, under subdivision 2 of section 179 relating to money received in a fiduciary capacity, the identical money received must be the property of the creditor. (State v. Kmg, 8 How., 298 ; Republic of Mexico v. Arungois, 5 Duer, 634 ; BuqwiclY. Kckoa/rds, 50 Barb., 288 ; Wood v. Henry, 40 N. Y., 124 ; Lewis v. Passer, 58 id., 260 ; 1 Wait’s Prac., 612-622.)

Appeal from an order made at the Special Term setting aside an execution against the person, and discharging the defendant from custody.