
    The People of the State of New York ex rel. Walter G. Harris, Respondent, v. Dudley Gill, Sheriff of the County of Warren, Defendant. Minerva Scoville, as Administratrix, etc., of George R. Scoville, Deceased, Appellant.
    
      Execution against the person — it may issue in an action for the negligent hilling of the plaintiff’s decedent —the limit of time imposed Try section 572 of the Code of Civil Procedure, when applicable—if an execution is unauthorized a remedy «cists by habeas corpus or preferably by motion.
    
    An action to recover the damages resulting from the death of a decedent, paused by the negligence of the defendant, is an action for a wrong done to the property rights or interests of the decedent’s next of kin, and a judgment rendered in favor of the plaintiff in such an action may be enforced by an execution against the person under the provisions of sections 549 and 1487 of the Code of Civil Procedure, which authorize the issuing of such an execution in an action to recover damages for an injury to property.
    Section 572 of the Code of Civil Procedure, limiting the time within which an execution against the person may be issued, relates only to cases in which the judgment debtor is in custody under an order of arrest or has given an undertaking to respond to any execution against his person.
    
      Semble, that a judgment debtor in custody under an execution against the person, issued in an action in which such an execution was wholly unauthorized, may obtain his discharge through the medium of a writ of habeas corpus.
    
      Semble, that a motion to set aside the execution against the person would be the better practice.'
    Smith, J., dissented. .
    
      Appeal by Minerva Seoville, as administratrix, etc., of George R. Seoville, deceased, from an order of the county judge of Warren county, entered in the office of the clerk of the county of Warren on the 26th day of March, 1903, discharging the relator from the custody of the sheriff of Warren county under a writ of habeas corpus.
    
      Erskine O. Rogers, for the appellant.
    
      T. D. Trumbull, Jr., for the respondent.
   Houghton, J.:

Through the negligence of the relator, George R. Seoville, appellant’s intestate, received injuries from which he died. Appellant, as administratrix of his estate, brought action against the relator to recover damages, and recovered a judgment for a considerable amount. Execution against the property was issued thereon and returned wholly unsatisfied. Seventeen days thereafter an execution against the person of the relator was issued and he was taken into custody by the defendant, sheriff and imprisoned in the Warren county jail. Thereupon the relator procured a writ of habeas corpus from the county judge of Warren county, who ordered that the relator respondent be. released from custody upon the grounds that the nature of the action did not permit an execution against the person, and that the execution against the person was issued more than ten days after the property execution was returned unsatisfied. Erom that order this appeal is taken.

It is claimed on the part of the appellant that the county judge had no power, on a writ of habeas corpus, to direct the sheriff to release the relator from custody, and that the only remedy of one in custody under an execution against the person is to move to set the execution aside.

While a motion to set aside the execution might be deemed better practice, because a proceeding in the action itself, yet we think one in custody under an execution against the person, where the issuing of such an execution was wholly unauthorized by law, has a right to move for his discharge through the writ of habeas corpus.

In People ex rel. McLoughlin v. Wilson (88 Hun, 258), relied upon by appellant, the presiding justice, it is true, lays down the rule that where it appears upon the return of a writ of habeas corpus that the prisoner is detained in custody by virtue of an execution against the person^ it is the duty of the judge to make an order remanding him back to custody; but the remainder of the court concurred in the reversal óf the order of discharge only on the ground that the relator was improperly discharged because an execution against his person was proper.

While section 2032 of the Code provides that the court or judge must forthwith make a final order remanding the prisoner if it appears that he is detained in custody by virtue óf a final judgment or decree, or of an execution or other process issued upon such a. judgment, yet section 2033, by subdivisions 4 and 6, provides-that a prisoner in custody can be discharged when the mandate-under which he is held, although in proper form, was issued in a-case not allowed by law, or where the mandate is not authorized by the judgment or decree.

While a party cannot review a judgment or decree under the-guise of a writ of habeas corpus, yet where his custody is unauthorized or unlawful, it seems quite clear that he has a right to that-remedy to procure his discharge.

The order cannot be sustained on the ground that the execution upon which the relator was imprisoned was issued more than tea days after the return of the property execution. Section . 572 of the Code of Civil- Procedure relates to cases in which an order of arrest had been issued, and it is only where such order of arrest, has-been granted and the judgment debtor is still in custody under that-process or has given an undertaking to respond to any execution against his person, that execution must be issued within three-mouths from the rendition of judgment-, and within ten days after the return of an execution against the property. ' (Sweet v. Norris, 12 Civ. Proc. Rep. 175; affd., 45 Hun, 595; 110 N. Y. 668; Redner v. Jewett, 72 id. 598.)

The important question to be determined is whether an execution, against the person can be issued on a judgment obtained for negligent acts producing injuries which caused death.

Included in the various kinds of actions in which, according to-the provisions of sections 549 and 1487 of the Code of Cjvil Procedure, an execution against the person may be. issued, are actions to-recover damages for a personal injury and an, injury to property.. By subdivisions 9 and 10 of section 3343 of the Code, a personal injury is defined to include an actionable injury to the person either of the plaintifE or of another; and an injury to property is defined as an actionable act, whereby the estate of another is lessened, other than a personal injury, or the breach of a contract.

In order to justify the issuing of an execution against the person on a judgment obtained by the next of bin against one whose negligence caused the death, the action must be deemed either for personal injuries or for injury to property.

If the person injured survived and obtained a judgment there is no question but what he would be entitled to an execution against the person of the defendant in default of being able to collect the judgment out of his property. So, too, if one’s horse or carriage was injured by the negligence of another, he would be entitled to such execution on the judgment he might obtain.

While many expressions may be found in the boobs as to the character of the action which by the statute is given to the next of bin where death is caused by negligence, and divers decisions may be found as to whether an execution against the person on such a judgment is permissible,-we thinb controversy has been set at rest by the decision of the Court of Appeals in Matter of Meekin v. B. H. R. R. Co. (164 N. Y. 145). The question there presented was whether such an action survived the death of the sole administrator and next of bin, and it was held that it did because the statute gave the right of action to recover damages for wrongs done to property rights, and not for injuries to the person of the decedent. After an elaborate review of the authorities as to the origin and nature of such an action, the court unanimously concludes that the action is one to recover for a wrong done to the property rights or interests of the beneficiaries, because the death deprived them of some pecuniary benefit reasonably to be expected from the continuance in life of the decedent.

The Code expressly providing that an execution against the person may issue in an action brought to recover damages for injury to property, there seems no reason why it should not include such property rights as are given to the next of bin of one whose death is caused by negligence.

This conclusion is in accordance with the spirit of the law giving. the extreme remedy of body execution for the recovery of damages brought about by wrongful act or omission, If this action had been brought by the administrator against the defendant for injury to the horse which the plaintiff’s intestate had been driving at the time of his death only, it could hardly be said that an execution against the defendant’s person could not be issued. The j udgment in the present, case, having been obtained for an injury to the property rights of the beneficiaries, it must follow that an execution against the person was proper.

The order should be reversed and the defendant remanded to the custody of the sheriff of Warren county, with ten dollars costs "and disbursements against the respondent.

All concurred, except Smith, J., dissenting.

Order réversed, with ten dollars costs and disbursements, and the defendant remanded to the custody of the sheriff of Warren county.  