
    Oscar Y. Babcock, App’lt, v. Fay Smith, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed July 11, 1892.)
    
    Conversion—Boarding house keeper’s lien—Judgment.
    An action to enforce a boarding house keeper’s lien upon property of a boarder which he has clandestinely removed is one for conversion of personal property within the meaning of sub. 2 of £3 2895 of the Code, and the justice is bound to insert in the judgment the liability of the defendant to arrest upon execution.
    Appeal by the plaintiff from a judgmentin his favor, rendered in the district court of the city of Hew York for the eighth judicial district. The action was commenced by the personal service of the summons .and a copy of the complaint upon the defendant. Upon the return of such summons and copy of the complaint, namely, on the 12th day of May, 1892, the defendant failed to put in an appearance, and the justice heard proof of plaintiff’s cause of action, which was substantially as follows: That the plaintiff was a boarding-house keeper in the city of Hew York) that the defendant was a boarder, occupying a room and taking .his breakfast with plaintiff; that defendant, after becoming indebted to plaintiff, clandestinely left the house unknown to plaintiff or his family, and in a secret manner removed all his baggage and wardrobe, except an old pair of pants and a vest. The fact that he had left did not become known until some time after he had gone away. When found, the defendant refused to pay his board. Plaintiff claimed a lien against the defendant’s baggage and wardrobe not in actual use under the law giving boarding-house keepers a lien upon all baggage and personal effects of their boarders for unpaid board. Upon the close of the proofs the justice reserved his decision, and on the 14th day of May, 1892, rendered judgment in favor of the plaintiff and against the defendant for $19.04 damages and $2.50 costs, making a total of $21.54. The counsel for the plaintiff thereupon requested the justice to render a judgment on which an execution could be issued against defendant’s body, which the justice refused to do, and to which refusal the plaintiff’s counsel excepted. From the judgment plaintiff thereupon appealed to this court. On the argument of the-appeal plaintiff only appeared by counsel, the defendant not appearing.
    
      John A. Grow, for app’lt.
   Per Curiam.

—The precise question involved in this appeal was presented in this court in the case of Searing v. Goodstein, 11 Daly, 236, and it was there held that the manner of commencing an action does not determine the question as to whether the plaintiff is entitled to have the clause “ defendant liable to execution against his person ” inserted in the judgment, and that where, as in this case, the cause of action is for the wrongful conversion of personal property, the same is one of the actions specified in subd. 2 of § 2895 of the Code of Civil Procedure, and consequently the justice was bound to insert in the judgment the liability of the defendant to arrest upon execution.

The judgment is therefore reversed, and a new trial ordered, with costs to the plaintiff to abide the event.

Bischoff and Giegerich, JJ., concur.  