
    Alexander Agar et al., Resp’ts, v. Franklin Haines, Appl’t.
    
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed April 2, 1888.)
    
    Arrest—Order eor arrest oe deeendaht under Code Civil Pro., § 449, surd. 2—Code Cito, Pro., § 3343, surd. 10.
    It is provided by Code Civil Pro., § 649, subd. 2, that a defendant may be arrested in an action for an injury to property, including the wrongful taking, detention or conversion of personal property. By Code Civil Pro., § 3243, subd. 10, an injury to property, is defined to be an actionable act whereby the estate of another is lessened, other than a personal injury, or the breach of a contract. . The plaintiff, by mistake, sent the defendant a check for goods which he had already paid for. The defendant was aware of this mistake, but retained and converted the check. Held, that in an action against the defendant for the conversion of the check, an order of arrest was properly granted under the the authority of the provisions of the statute above-quoted.
    
      Appeal from an order of the general term of the city court, affirming an order of Mr. Justice Ehrlich, denying a motion to vacate an order of arrest.
    
      A. E. Woodruff, for app’lt; W. O. Campbell, for resp’ts.
    
      
       Affirming 11 N. Y. State Rep., 644.
    
   Yan Hoesen, J.

We think that the order should be affirmed. As Chief Justice MacAdam has said, the defendant is guilty of larceny if, at the time he received and converted the check, he knew it had been sent to him by mistake, and that he had already been paid for the goods which the check was intended to pay for.

It is a very significant fact that in his affidavit the defendant nowhere denies that he knew when the check came into his hands; that he had no right to it, and that it had been sent to him by mistake, or that he had forgotten the previous payment. He voluntarily assumed the task' of making a full explanation, and yet is silent as to the most material point of all; a point that he could pot dare overlook. His affidavit supplement, and makes complete the case of the plaintiff.

The defendant’s liability to arrest is created by subdivision 2, of section 549; the clause applicable to his case being “A defendant may be arrested in an action for an injury to property, including the wrongful taking, detention or conversion of personal property.” Subdivision 10, of section 3343, defines “an injury to property” to be an actionable act whereby the estate of another is lessened, other than a personal injury, or the breach of a contract.”

The defendant, by an actionable act, which without undue severity may be called a larceny, lessened the estate of the plaintiff’s to the amount of the check that without a shadow of right, he appropriated to his own use.

The case of Duncan v. Katen (6 Hun, 1), presents a good example of the manner in which courts'have construed the words “injury to property.” In that case, the defendant persuaded a clerk to steal gold certificates from his employer, and give them to her, and it was held, that she was liable to arrest for an injury to property. “The property,” said Judge Davis, “is the right, not the thing—the right to have,' use and enjoy the thing unmolested, and when that right is disturbed, the law gives an action for the injury.”

The facts of this case do not bring it within the principle enunciated in 14 How. Pr., 408, and 58 How. Pr., 301.

Daly, J., concurs.  