
    PURCHASE a. BELLOWS.
    
      New York Superior Court ;
    
      General Term, November, 1862.
    Execution against the Pebson.-—Abeest foe Costs.
    A defendant succeeding, and recovering judgment for costs, in an action to recover the possession of specific personal property, in which no order for his arrest has heen made, cannot issue execution against the person of the plaintiff upon such judgment.
    
    Appeal from an order granting a motion by the plaintiff to set aside an execution against his person.
    This action was brought by John Purchase against George F. Bellows, to recover the possession of certain personal property alleged to be wrongfully detained, with damages for its detention.
    Judgment was rendered in favor of the defendant for the costs of the action. After an execution upon this judgment, issued against the property of the plaintiff, had been returned unsatisfied, the defendant issued an execution against plaintiff’s pei’son. The plaintiff moved at chambers to set aside this execution, and the motion was granted. The decision is reported 14 Ante, 357.
    From the order setting aside the execution the defendant appealed to the court at general term.
    
      W. Wells, for the defendant, appellant,
    cited Roberts a. Randell, 3 Sandf., 709; Chappel a. Skinner, 6 How. Pr., 339; Kloppenberg a. Neefus, 4 Sandf., 655 ; Merritt a. Carpenter, 30 Barb., 61; Brush a. Mullen, 12 Abbotts’ Pr., 242; Code, § 288.
    
      Thos. Stevenson, for the plaintiff, respondent,
    cited Code, § 179, subd. 3; Ib., §206; Chappel a. Skinner, 6 How. Pr., 338; Mulvey a. Davidson, 8 How. Pr., 111; Code, § 167, subd. 6; Hoffman's Provisional Remedies, 9, 23, 106; 3 How. Pr., 297 ; 18 Ib., 94; Code, § 289, subd. 4 ; Ib., § 288.
    
      
       In the case of McKay a. Deafer (Supreme Court, First District; Special Term, November, 1863), the rule laid down in Alden a. Sarson (4 Ante, 102), that an execution against the person cannot issue in an action on contract, not sounding in tort, unless an order of arrest was made in the action, was followed, though with some hesitation.
      Ingraham, J.—The defendant was arrested on an execution against the person, and now moves for an order to set aside the execution.
      This depends upon the character of the action. The complaint is for money held by him upon certain conditions, which he has neglected to pay over. It is not a complaint for any tort, and the liability of the defendant is clearly that of a bailee.
      There may be some doubt whether, in such an action, where the bailment is set out in the pleadings, the defendant may not be arrested ; but as the point has been decided by one of .the judges of this district, in Alden a. Sarson (4 Abbotts’ Pr., 102), I think best to follow that decision until reviewed by the general term. In that case, the judge held that the defendant could not be arrested on execution without a previous order. As there was no order in this case, the motion must be granted on defendant’s stipulating not to bring an action. As the plaintiff may desire to submit the question to the general term, he may have a #ay of proceedings on this order, for the purpose of an appeal.
      Motion granted, on defendant’s stipulating, &c.
    
   By the Court.—Bosworth, Ch. J.

This is an action to recover the possession of personal property. No order for the arrest ¿f the defendant was obtained.. He succeeded in the action. Can an execution issue against the person of the plaintiff for the costs ? ■ If the plaintiff had succeeded, no execution against the person could issue against the defendant. (Hoff, on Prov. Rem., 22, 23.) The plaintiff cannot be arrested, unless a plaintiff who fails to recover, and against whom a judgment is rendered for costs, may be subjected to execution against his body, in an action where no such execution could issue against the defendant, if the plaintiff had succeeded. Section 178 [153] declares that no person shall be arrested in a civil action, except as prescribed by that act.

The order should be affirmed.

Order affirmed, with ten dollars costs. 
      
       Present—Bosworth, Ch. J., and Moncrief, Robertson, Barbour, and Monell, JJ..
     