Ryall v. Kennedy — 41 N.Y. Super. Ct. 531

Majority

p. 531

JOHN RYALL, Administrator, &c. v. JAMES KENNEDY.

Special Term,

March, 1877.

Before Freedman, J.

Headnote

EXECUTION AGAINST THE PERSON. ARREST. ACTION FOR DAMAGES FOR DEATH.

1. When cannot issue.

(a) In an action brought to recover damages for causing death by negligence under the acts of 1849, p. 338, 1847, p. 575, 1870, p. 215, the defendant cannot be arrested under an execution issued upon a judgment obtained therein,

UNLESS

1. An order of arrest has been obtained, under section 179, on the ground, either that defendant was not a resident of the State, or was about to remove therefrom.

This is a motion to set aside an execution issued against the person of the defendant.

The complaint in the action avers :

1. That the defendant was the master of the steamship City of Brussels.

2. That in March, 1871, the plaintiff’s intestate, John Ryall, took passage on the said steamship from Liverpool to New York, and the master for a good consideration, “undertook, promised, and agreed, to safely and securely convey and transport the intestate to the city of New York by the said steamship.”

3. That the intestate then went on said vessel, and proceeded on his voyage to New York.

4. That thereafter, and through the negligence and carelessness of the said defendant, the said master of said vessel, a tin drinking-cup used by emigrants, and

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which then contained poison, was allowed by snch defendant, master aforesaid,-to be placed and remain on or near the dining-table in the cabin of said vessel, where said John Ryall, Jr,., now deceased, took his meals, and through snch carelessness and negligence of said defendant, master as aforesaid of said vessel, the said John Ryall, Jr., being then about five years of age, entered such cabin, and took up said tin cup to drink, not knowing it contained poison, whereby he was instantly poisoned, and which resulted in his death ; all of which was without the fault or negligence of -said John Ryall, Jr., or his parent, in whose charge he was.

The action was tried some years ago, and the complaint dismissed on the ground that the owners, and not the captain, were liable.

The plaintiff appealed to the general term of this court, where the judgment of dismissal was reversed and a new trial ordered.

The defendant appealed to the court of appeals, where the order was affirmed, and, pursuant to the stipulation to be given on such appeals, judgment absolute ordered for plaintiff with costs.

The jjroceedings were thereupon remitted to this court, and the case sent to a sheriff’s jury to assess the damages, which they did at two thousand dollars.

Judgment thereupon was entered in plaintiff’s favor, and execution issued against defendant’s property, which was returned nulla dona.

The plaintiff then issued an execution against the person of the defendant, upon which the defendant is now held in custody.

Salter & Cowing, attorneys, for plaintiff.

Platt & Gerard, attorneys, and John M. Bowers, of counsel, for defendant.

Section 288 of the Code provides that if the action be one in which the defendant might have been arrested as provided in sections 179 and 181, an execution against the person of the judgment debtor may be issued, but no such execution shall issue, unless an order of arrest has been served, as provided by the Code, or unless the complaint contains a statement of facts showing one or more of the causes of arrest re- • quired by section 179.

Under the decision in Wood v. Henry ( 40 N. Y. 124 ), the phrase in the statute “ statement of facts,” must be construed to mean, and be confined to, a statement of such facts as are constitutive parts of the cause of action.

Ho order of arrest having been obtained, the execution cannot be sustained on the ground of the existence of such an order.

In the view hereafter expressed an order of arrest could not have been granted in this case, except on affidavit showing that defendant was either a non-resident of the State or about to remove therefrom. But this question is not now before me, for no facts appear which call for a decision upon that point.

It therefore remains to be seen only whether the facts alleged in the complaint which constitute the cause of action show one of the causes of arrest specified by section 179.

It is contended that they do,, it being claimed that the complaint sets forth facts constituting a cause of action for an injury to the pereon.

It is true that the complaint sets forth a cause of action for negligence. It is therefore founded on tort. But the tort alleged is hot such as will authorize an arrest of the defendant.

Even if the term, “injury to person,” as used in section 179, can be deemed to include all kinds of personal injuries, be they occasioned by acts of omission

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or of commission, on the part of the defendant, it cannot be extended, by judicial construction, beyond injuries to the person of the plaintiff. An action for such an injury dies with the plaintiff.

The case at bar is not an action for an injury to the person of the plaintiff, but a statutory action founded upon the death of plaintiff’s intestate. It could not have been maintained at common law. It is purely the creature of a statute. The statutes under which such actions are now maintainable, are Laws of 1870, chap. 78, p. 215, amending Laws of 1847, chap. 450, p. 575, and Laws of 1849, chap. 256, p. 338. They provide for the recovery of pecuniary damages not exceeding five thousand dollars, but give no remedy whatever against the person of the defendant. They are in derogation of the common law, and hence their provisions cannot be extended and deemed to confer, by implication, a right of arrest so long as their language is not fairly susceptible of such an interpretation.

The execution against defendant’s person must be set aside, with ten dollars costs.

Cases cited

Wood v. Henry 40 N. Y. 124 N.Y. 1869-03-19 p. 532