
    John Hegman Day, Respondent, v. Walter F. Duckworth, Appellant.
    (City Court of New York, General Term,
    June, 1896.)
    Execution — Body, cannot be issued on judgment in action on contract.
    The complaint alleged an agreement between the parties to divide commissions on sales of real estate, a specified proportion to be paid to plaintiff; that certain sales were made, and that defendant embezzled and converted said proportion to his own use and refused to pay the same to the plaintiff, and judgment was entered on default. Held, that the action was one upon contract, and that an execution against the person could not be issued thereon.
    Appeal from so much of an order as refuses to vacate an execution against the person of defendant.
    Samuel S. Watters, for respondent.
    Epstein -Brothers, for appellant.
   Conlan, J.

This is an appeal from so much of an order as refuses to vacate and set aside an execution against the person of the defendant.

The plaintiff commenced an action on the 3d day of January, 1896, hy the service of a summons with notice on the defendant. Vo complaint was served, but on January 11, 1896, plaintiff entered judgment against the defendant hy default for the sum of $89.47. This judgment' was entered hy the clerk of the court without application to the court.

The judgment-roll consisted of the summons with notice and affidavit of service, complaint and statement for judgment. Thereafter, and on March 12, 1896, an execution upon said judgment was issued against the person of the defendant to the sheriff of the county of Kings, and the defendant was arrested by the said sheriff and was released by the payment to him by the defendant’s father, James Day, of the sum of $104.47, the amount of such judgment and, sheriff’s fees.

The complaint alleges an agreement between plaintiff, and ’ the defendant to divide commissions on sales of real estate in the pro-portion of sixty to twenty; the twenty per cent, to be paid over to the plaintiff. .

After alleging certain sales and the payment of the commissions to the defendant, the complaint charges that the defendant embezzled and converted the said twenty per cent, to his own use and refused to pay over the same to the plaintiff.

If the complaint is one in tort, the judgment having been entered without application to the court, the judgment and all subsequent proceedings should be set- aside.

If the complaint is- simply -on contract for money had and received,' then the execution against, the person of the defendant should be vacated.

We are satisfied that the complaint is one on contract, and that the use of the words, “ embezzled ” and converted.” is nothing more than a -legal conclusion and may be disregarded as surplus-sage. Segelken v. Meyer, 94 N. Y. 473; Cohn v. Beckhardt, 44 N. Y. St. Repr. 544.

It follows, therefore, that the execution issued against the person of the defendant must be vacated with costs, together with so much of said order as directs that the money collected by -the sheriff shall stand and remain with said sheriff.

O’Dwyer, J., concurs.

Portion of order appealed from reversed, with costs.  