
    Nathaniel T. Bacon, Appellant, v. Ignatius R. Grossmann, Respondent.
    
      Execution against the person — the clerk is not authorized to insert a provision authorizing it in the postea — it must he determined from the complaint and the attm'ney must issue it at his peril.
    
    A county clerk, in making up the judgment roll in an action tried in a court of record, has no right to insert in the postea of the roll a statement that the plaintiff is entitled to enforce the judgment hy an execution against the defendant’s person, and such a statement will, upon motion, be stricken out.
    In sueh a case the question whether the action is one in which an execution against the person can issue is to be determined from the 'allegations of the complaint, and the responsibility of making the determination must be assumed by the plaintiff’s attorney and cannot be placed upon the clerk.
    Appeal by the plaintiff, Nathaniel T. Bacon, from an order of the Supreme Court., made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of November, 1903, modifying a judgment in favor of the plaintiff, entered in said clerk’s office on the 22d day of October 1903.
    
      Selden Bacon, for the appellant.
    
      Gormly J. Sproull, for the respondent.
   Van Brunt, P. J. :

As appears by the clerk’s minutes, this action was tried by the court and a jury, and a verdict rendered by direction of the court in favor of the plaintiff. Thereupon the judgment roll was made up by the clerk, the postea in which contained recitals that it appeared from the record that this action was brought to recover money had and received by the defendant to the use of the plaintiff and his assignors, and it being alleged in the complaint that the money sued for was received by the defendant in a fiduciary capacity, and that he converted the same to his own use, and it appearing from the pleading that this is an action in which the plaintiff is entitled to satisfy his judgment by execution against the body of the defendant, etc., it is adjudged that the plaintiff recover of the defendant a certain sum of monéy, and that said plaintiff may enforce the judgment against the person of the defendant, and that the plaintiff have execution therefor..

A motion was made to strike out these recitals in the postea of the judgment roll, which motion was granted, and from the order thereupon entered this appeal is taken.

It is claimed upon the part of the appellant that the propriety of inserting such a provision in the judgment seems to be thoroughly established by the Court of Appeals, citing the case of Moffatt v. Fulton (132 N. Y. 507). An examination of the record of this case shows that the question litigated there came up in an entirely different form from that presented to this court upon this appeal. There was no question of regularity whatever brought up upon the appeal in that case. The question litigated there was whether, under the allegations of the complaint, it appeared that the defendant had received the money in a fiduciary capacity and an execution against the person could issue. It was held by the General Term that the complaint did not authorize an execution against the person, and that, therefore, the provisions of the postea of the judgment roll allowing such execution were improper. The Court of Appeals decided that the complaint did set out a cause of action which, upon a recovery, allowed the issuing of an execution against the person.

There was no question- before the court as to the regularity of the insertion in the postea of any such provision. Questions of regularity can never be raised upon an appeal. The only way in which that question could be raised would be by a motion to strike from the postea of the judgment roll the words adjudging execution against the person* as was done in the case at bar. It is to be determined from the allegations contained in the complaint as to whether the action is one in which an execution against the person can issue. Under the provisions of section 179 of the Code of Procedure and of section 549 of the Code of Civil Procedure, as first enacted by chapter 448 of the Laws of 1876, in reference to arrest, there were certain actions where an- order of arrest might issue because of the nature of the cause of action. By section 550 of said Code of Civil Procedure there were certain-other actions where, in consequence of facts extrinsic to the cause of action, an order of arrest might issue, and in those cases the right to the order of arrest was established by affidavit, and where it was so established an execution ágainst the person might issue upon the judgment. But in those cases in which the right to issue an execution depended upon the nature of the cause of action, such procedure does not seem to havé been necessary. Subsequently, by chapter 542 of the Laws of 1879 and chapter 672 of the Laws of 1886, the provisions of the Code of Civil Procedure were amended by the consolidation of sections 549 and 550, so that if the plaintiff desired an execution against the person because of extrinsic facts, he was bound to allege those facts in his complaint and prove them upon the trial, but in case of failure to prove those facts upon the trial he was not prevented from bringing a subsequent action to recover upon the debt. There is no provision of the Code of Civil Procedure which in any way authorizes the clerk to determine the proposition as to whether the cause of action is of such character as to authorize the issuance of an execution against the person or not. That the attorney must take the responsibility of, and it cannot be put upon the clerk.

In the Municipal Court, where the pleadings may be oral, the law requires when an execution, can be issued against the person that the judgment of the justice must so state, and then the clerk must enter such fact in the docket. (See Laws of 1902, chap; 580, §§ 145, 251.) In the Code of Civil Procedure there is no such provision relating to courts of record, showing that the allegations of the complaint must determine whether execution against the person can issue, and there is no provision authorizing any action of the clerk npon the subject. In the lower court mentioned, where the pleadings may be oral, of course the record contains nothing to indicate whether the action is of that character or not, and hence there must he a judicial direction. ,

We think, therefore, that the order was correct and should be affirmed, with ten dollars costs and disbursements.

O’Brien, Ingraham, McLaughlin and Laughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  