
    CHAMBERS a. LEWIS.
    
      New York Common Pleas;
    
      Special Term, March, 1860.
    Election of Remedies.—Complaint.
    In an action for wrongfully taking and detaining personal property, the complaint demanded judgment for damages in the amount of the value of the property, with interest.
    Held, the summons not being before the court, that it was not to be deemed that plaintiff’s action was founded on a waiver of the tort, and a resort to an implied promise to pay, but that the foundation of the action was the tort.
    Of the election of remedies under the Code.
    Demurrer to complaint.
    The facts are stated in the opinion.
   Brady, J.

—It seems to be settled upon principle, and the weight of authority, that where goods are wrongfully taken or detained, the plaintiff may waive the tort, and bring an action upon an implied promise to pay for them. (Butts a. Collins, 13 Wend., 154; Putnam a. Wise, 2 Hill, 140, and cases cited in note; McKnight a. Dunlop, 4 Barb. S. C. R., 36 ; Carey a. Green, 3 How. Pr. R., 376; Hinds a. Tweddle, &c., 7 Ib., 278.) But an examination of the cases will show that where the tort was waived, the action was in form, not trover, but assumpsit. Under the Code assuming the right of election to exist, thei'e is a difference in the remedy. If the action be for wrongfully taking or detaining property, the defendant may be arrested, but not if it be to recover a sum of money arising upon contract, unless the defendant was guilty of a fraud in contracting the debt. It may be that the conversion of property would be a fraud for which the defendant could be arrested, and that the right to arrest would exist, although the action were for money due as upon a sale or purchase of the goods converted; but I do not think the courts would extend the remedy to such a case. The debt referred to must be one expressly contracted, and not one growing out of implied obligations, or created by operation of law. But how is the election to be determined in cases under the Code ? The complaint must state the facts constituting the cause of action, and they are, that the defendant took or detains property of the value of a sum named, and the prayer is for judgment for the value of the property, with interest. In trover, under the old system of pleading, the declaration was very different from the declaration in assumpsit for goods sold, and there could be no difficulty in determining the form in which the plaintiff presented his demand. He must now recover upon the facts, and if his summons be for a money demand on contract, there can be no doubt of his election; but the summons forms no part of the pleadings, and I cannot, by reference to it, determine whether the plaintiff has elected what form his action shall assume. The prayer for relief may sometimes determine the question, and I think does in this case. The plaintiff prays judgment for the sum of six hundred and forty dollars, which is the value of the property detained, with the interest thereon. This is precisely what the law of damages would give him in an action to recover for the wrongful detention of the property, leaving the question of value open to dispute. (Stevens a. Lowe, 2 Hill, 132; Dillenback a. Jerome, 7 Cow., 294; Kennedy a. Strong, 14 Johns., 128.) It is true that such would be the rule, if the action were to recover as for goods sold, although the pleader might then allege the goods reasonably worth the sum named. In this case the plaintiff insists that the action is in tort, on the nature of the old action of trover, and the defendant insists that it is not. In form, under the Code, it may be either, because the facts are the same; but it is clear that on the complaint the plaintiff would be entitled to an order of arrest, and the action must be regarded as of the character claimed by him. It may be that the defendant is right, but he has proceeeded upon the supposition that the complaint was in form one not only for the recovery of the value of the goods converted, but one in which the tort was waived. I have been unable to arrive at such a conclusion, although I have given this case a great deal of attention and consideration. I thought the question very embarrassing; and the views which I have adopted not having been suggested on the argument of the demurrer, I have been more cautious and deliberative in making them the basis of any judgment. If the defendant had produced the summons, the result might have been different.

The plaintiff is entitled to judgment, but leave is granted the defendant to amend on payment of the costs of the demurrer.  