
    Isaac Hough, Resp’t, v. Theodore V. Folmsbee, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 18, 1891.)
    
    1. Abbest-^Affidavit.
    The plaintiff brought an action of replevin for personal property. He also obtained an order of arrest under Code Civil Procedure, § 549, subd. 2, which stated that the defendant had concealed, removed or disposed of the goods with intent to deprive the plaintiff of the benefit thereof, but the affidavit did not state that this had been done so that the chattels “cannot be found or taken by the sheriff, and with intent that they should not be found or taken,” etc. Held, that the order of arrest was improper.
    2. Same.
    The order of arrest could not be sustained as granted in an action “to recover damages * * * for an injury to property, including the wrongful taking, detention or conversion of personal property ; ” it not appearing that the sheriff cannot find or take the goods nor that plaintiff cannot issue a requisition to the sheriff under Code Civil Procedure, § 1694, requiring him to take possession of them.
    Appeal from order of the Albany special term, denying a motion to vacate an order of arrest. Said motion was made upon the papers upon which the order of arrest was granted.
    The following is the opinion at special term:
    Learned, J.—Under the old Code, § (154) 179, prior to 1851, it was provided that a defendant might be arrested in an action to recover personal property, “ where the property or any part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff.”
    In 1851 this was amended by adding, “ and with the intent that it should not be so found or taken or with the intent to deprive the plaintiff of the benefit thereof.” Proof was to be made by affidavit. Section 181.
    In the case of Barnett v. Selling, 70 N. Y., 492, decided under that section, 179, the affidavits showed that the defendant had, by fraudulent representations, bought tobacco of the plaintiff. And that the defendant, with intent to deprive plaintiff of the benefit thereof, had sold and disposed of the tobacco; and that the sheriff to whom, the requisition had been issued had not found or taken any part of it, but had returned the requisition with the usual certificate. It was held that the order of arrest, in respect to the tobacco, was properly granted. It will be seen therefore that it appeared by the affidavits in that case that the sheriff had been unable to find or take the property ; and, further, that the claim for the property had been made previously to the order of arrest.
    Ho question, therefore, arose as to the allegations needed in the complaint. There was no dispute that the property could not be found or taken by the sheriff. And the first sentence of the opinion speaks of the property being beyond the reach of the process of the court. A concealment, removal or disposal of the property which did not put it beyond the process of the court was not considered by the court. For no such case existed.
    The present Code as it now stands is different. The provision was originally found in § 550, subd. 1, where it was substantially like the old Code, § 179, subd. 3. But by chap. 672, Laws of 1886, nothing was left of § 550 but its last subdivision. And the whole matter was brought into the new section, 549. Subdivision 2 of that section is the one to be considered. It will be found that this subdivision authorizes an order of arrest in several kinds of action. As to some of these it simply describes the kind of action; in others it requires certain allegations in the complaint. For instance, it gives authority for an order of arrest in an action to recover for money received “ where it is alleged in the complaint,” etc.; so it gives a right to an order of arrest in an action to recover a chattel “ where it is alleged in the complaint that the chattel, .or a part thereof, has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff, with intent,” etc.
    The complaint in this action avers that the defendant has not sold the goods in question and refuses to deliver them and wrongfully' detains them, and has concealed, removed or disposed of them with intent to deprive the plaintiff of the benefit thereof. But it fails to aver that the property or any of it cannot be found or taken by the sheriff. It is very possible that the property has been sold and yet it may be within reach of the process of the court. And the plaintiff asks for a recovery of the property or for the value in case a delivery cannot be had. H the complaint then were solely for the recovery of a chattel, in my opinion the order of arrest could not be sustained.
    But there is another clause in subd. 2 of this section, by which an order of arrest may be granted for an injury to property, “ including the wrongful taking, detention or conversion of personal property.” How this complaint avers the ownership of the property, the delivery to defendant to be sold by him; the fact that defendant has not sold the property and unlawfully detains it from plaintiff after demand. Here then is a sufficient complaint for wrongful detention and conversion. And in an action of that kind an order of arrest may be granted.
    Motion denied, with ten dollars costs.
    
      Z. S. 'Westbrook, for app’lt; John A. Stephens, for resp’t.
   Landon, J.

The plaintiff in his affidavit says: “That this was brought to recover possession of certain personal property wrongfully detained by defendant, or the value thereof in case a delivery cannot be had, and damages for the wrongful detention thereof.” The affidavit then recites the facts constituting the cause of action substantially as stated in the verified complaint. The complaint alleges title in the plaintiff to certain goods and merchandise, their value, the delivery thereof from March, 1889, to March, 1890, by plaintiff to defendant under an agreement whereby defendant was to sell the same as agent for the plaintiff and return the proceeds of the sale to plaintiff as soon as received, and to return the unsold part thereof to plaintiff ; that defendant did not sell the same; that plaintiff demanded of defendant in August, 1890, the same or their proceeds, which was refused, and then alleges that defendant wrongfully and unlawfully has detained said goods from plaintiff and has concealed, reinoved, or disposed of the same with intent to deprive the plaintiff of the benefit thereof. Judgment is demanded against the defendant for the recovery of the possession of the goods, or for §1,169.50, their value, in case a delivery cannot be had, together with $250 damages for their detention.

The order of arrest cannot be sustained upon the ground that the action is “to recover a chattel,” for in such case § 549, Code of Civil Procedure, provides that the defendant may be arrested “ where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof.” This complaint does not allege that the goods have been so concealed, removed or disposed of that they cannot be found or -taken by the sheriff with either one or the other intent specified in the section.

But the learned judge at special term upheld the order of arrest under that clause of § 549 which provides that the defendant may be arrested in an action “To recover damages for * * * an injury to property, including the wrongful taking, detention, or conversion of personsal property.”

Upon the facts stated, the plaintiff might have framed his complaint as for a conversion. But he chose to frame it in replevin. In the former case he would abandon title and possession and seek satisfaction in damages. In the present case he insists upon his title and seeks to regain possession. A complaint for damages for injury to the goods and for their unlawful detention would be appropriate if the goods had been returned after having been injured and unlawfully detained. Under the complaint as framed the plaintiff can issue a requisition to the sheriff to take possession of the goods, § 1694, and it does not appear that the sheriff cannot find or take them. For aught that appears this remedy is available. If so, and if the order of arrest is upheld, then the plaintiff will have two remedies, each upon grounds inconsistent with the other ; one because he can take the goods, and the other because he cannot. Under § 549 he cannot have an order of arrest if he so frames his complaint as to show his right to issue his requisition, unless he also shows that the requisition will not help him.

Order reversed, with ten dollars costs and printing disbursements, and motion to vacate granted, with ten dollars costs.

Mayham, J., concurs; Learned, P. J., takes no part.  