
    Josephine Decatur, Ex’rx, etc., Resp’t, v. John E. Goodrich, Appl’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1887.)
    
    1. Arrest—Order of—Agent when liable to under Code Civ. Pro., §549.
    There must be shown some violation of the trust, some wrong-doing on the part of the defendant, more than the mere non-payment of money received, even though it was received by an agent, to give a right of arrest under Code of Civil Procedure, § 549.
    2. Same—When complaint contains other causes of action.
    When the complaint contains any cause of action for which the defendant cannot be arrested, the order cannot stand.
    Appeal from an order of arrest.
    
      A. T. Clearwater, for resp’t; Wm. Lounsbery, for app’lt.
   Learned, P. J.

The Code of Civil Procedure, § 549, as now amended, Laws 1886, chap. 672, says a defendant may be arrested where an action is brought to recover for money received where it is alleged in the complaint that the money was received “by a factor, agent, broker or other person “in a fiduciary capacity.” Plainly the words, “in a fiduciary capacity,” qualify all the persons described. A factor might borrow money. He would not be liable for arrest for not paying it. It is for money received in a a fiduciary capacity that the defendant may be arrested.

Section 550 now contains nothing on this point. If this complaint contains any cause of action for which the defendant cannot be arrested, the order cannot stand. Madge v. Puig, 71 N. Y., 608.

The second allegation is, that the defendant as agent of the testator became possessed of a large sum of money belonging to said testator. Then follows an allegation that after deducting all credits and commissions there remains due to plaintiff as executor on account of all the matters alleged the sum of $3,100, which defendant refuses to pay, after the same has been demanded.

Is the statement that defendant as agent of the testator became possessed of a sum of money sufficient under section 549? As that section gives a right to arrest “for money received, ” without requiring proof of embezzlement or fraudulent application, it seems necessary to understand that the money must have been received upon some trust or duty in some fiduciary capacity—more than is implied by the word agent. A man sometimes carries on a business as the agent for another, buying and selling as freely as if the matter was his own. We cannot think that every such case of agency renders the agent liable to arrest for all moneys received. See Walter v. Bennett, 16 N. Y., 250; Greentree v. Rosenstock, 61 id., 583.

In this latter case, the allegations of the complaint were much stronger than those we have cited from the present complaint. There must then be shown some violation of the trust; some wrong doing on the part of the defendant, more than the mere non-payment of money received, even though it was received by an agent.

In the case of Stoll v. King (8 How., 298), a clear distinction is drawn. The judge says : “I think the criterion in every such case is to determine whether the specific moneys received ought in good faith to have been paid over to the employer, or whether the defendant upon receiving such moneys had the right to use them as his own, holding himself accountable to his principal for the debt thus created.”

We think, therefore, that this part of the complaint was not enough to authorize an arrest; while we will not say that the first allegation might not have been sufficient if it had stood alone.

Without passing upon the other questions, we are of opinion that the order appealed from should be reversed and the order of arrest vacated, but without costs.

Landon and Mayham, JJ., concur.  