
    Hough v. Folmsbee.
    
      (Supreme Court, General Term, Third Department.
    
    February 18, 1891.)
    Arrest in Civil Action—Conversion of Personalty—Pleading.
    In an action to recover possession of personal property wrongfully detained by defendant, or its value, with damages for its detention, where the complaint does not contain the allegation, required by Code Civil Proc. FT. Y. § 549, to authorize an order of arrest in such an action, that the property “has been concealed, removed, or disposed of so that it cannot be found or taken by the sheriff, ” etc., an order of arrest cannot be sustained under the provision of the same section that defendant may be arrested in an action “to recover damages for an injury to property, including the wrongful taking, detention, or conversion of personal property. ”
    Appeal from special term, Albany county.
    Action by Isaac Hough against Theodore Y. Folmsbee to recover certain specific chattels. Defendant appeals from an order denying a motion to vacate an order for his arrest.
    Argued before Landon and Mayham, JJ.
    
      Borst & Westbrook, {Z. 8. Westbrook, of counsel,) for appellant. John A. Stephens, for respondent.
   Landon, J.

The plaintiff, in his affidavit, says “that this action 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, removed, 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 section 549, Code Civil Proe., 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 section 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 personal 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, (section 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 section 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 $10 costs and printing disbursements, and motion to vacate granted, with $10 costs.  