
    EMMA DE F. SHERWOOD, Respondent and Appellant, v. AUGUSTUS L. PIERCE, Appellant and Respondent.
    
      Decided June 16, 1884.
    
      Execution against the person—when it may issue.
    
    In an action in which a promise or contract and its breach is alleged; and, as a conclusion to such breach, the conversion of the property that was the subject of the contract is averred, and as appeared by the findings,
    , the recovery of the judgment, which was taken by default, is upon the promise or contract, as much as upon the tort, no order of arrest having been obtained, an execution issued against the person should be set aside. Where the defendant has been guilty of laches and misleading conduct, the condition that he shall not sue for false imprisonment may be imposed, on setting aside the execution against the person.
    Another view of such a case is, that after a sufficient cause of action on contract has been stated, the additional allegation of a conversion of the property, the subject of the action, may be considered as substantially surplusage ; the action is complete without it, and it cannot serve as a foundation for a judgment authorizing the issue of an execution against the person (Greentree v. Rosenstock, 61 N. Y. 583 ; Wood v. Henry, 40 Id. 124).
    Before Sedgwick, Ch. J., and Ingraham, J.
    Appeal by defendant from order denying motion to set aside judgment taken on default of appearance.
    Appeal by plaintiff from a part of same order that set aside an execution against defendant’s person.
    The facts'are stated in the opinion.
    
      Henry D. Sedgwick, for defendant.
    The second article of the complaint that simply avers a case of neglect to carry out the principal’s orders, and the words “but converted the said stock and the proceeds thereof to his own use” are “unnecessary and superfluous.” Such cause of action as the plaintiff undertook to allege was complete without this surplusage, and is not changed by it. It cannot serve as a foundation for a judgment authorizing the defendant’s arrest (Greentree v. Rosenstock, 61 N. Y. 583 ; Walker v. Bennett, 16 Id. 250 ; McMorris v. Simpson, 21 Wend. 610; Wood v. Henry, 40 N. Y. 124 ; Conaughty v. Nichols, 42 ld. 83 ; Tupman v. Nat. S. S. Co., 76 Id. 207 ; Palmer v. Hussey, 87 Id. 303 ; Smith v. Edmonds, 1 Code R. 86 ; Ladd v. Arkell, 37 Super. Ct. 35 ; Hawkins v. Hoffman, 6 Hill, 686, 588 ; Story Bailments, 9th ed. § 165).
    
      Erastus New, for plaintiff.
    The execution against the person was lawfully issued. Section 1487 of the new Code allows an execution to issue against the person on a judgment “where the plaintiff’s right to arrest the defendant depends upon the nature of the action,” provided- the final judgment is for a sum of money.
    Sections 549 and 1240 of new Code, being the sections giving the cases in which the right to arrest depends on the nature of the action, provide that a defendant may be arrested in an action, where the action is brought for a wrongful taking, detention or conversion of personal property. The plaintiff states a cause of action for the conversion of plaintiff’s personal property by the defendant to his own use, to the damage to the plaintiff in the sum of one thousand dollars. And the fact of the conversion of plaintiff’s stock and the proceeds to his own use by the defendant is expressly found by the court. The allegation of the conversion by the defendant to his own use of plaintiff’s property is sufficient without setting out the manner in which the defendant converted the property (Decker v. Matthews, 12 N. Y. 513; Esmay v. Fanning, 9 Barb. 177).
   By the Court.—Sedgwick, Ch. J.

My opinion is that the nature of the action was not such that an execution against the person might be issued properly without an order of arrest having been obtained.

The complaint averred, and the finding of the judge followed such averments, that the “plaintiff delivered said stock to the defendant with directions either to collect the amount of said loan at once, or sell said stock, and pay over the proceeds to the plaintiff, and defendant received said stock pursuant to said directions, and promised to comply therewith, but utterly failed, refused and neglected so to do, but converted said stock and the proceeds thereof to his own use.” It is manifest that the complaint states two causes of action. One of these is upon the breach of promise, and does not present a cause of arrest. The other is for conversion, in which it is claimed there may be an arrest. The recovery is upon the promise as much as upon the tort. In such a case, a defendant cannot be arrested.

Or another view may be taken under the case of Greentree v. Rosenstock (61 N. Y. 583) ; and like cases since Wood v. Henry (40 N. Y. 124), that the allegation of conversion is substantially surplusage, after a sufficient cause of action on contract has been stated, or is deemed to be an allegation of such conversion, as being equivalent to the breach of contract alleged, which would be an error of law.

The judge was, therefore, right in setting the execution aside, and I think the laches and misleading acts of the defendant justified the imposition of the condition that the defendant should not prosecute for a false imprisonment.

If the merits of the defense were disclosed solely by the defendant’s affidavit, there would be doubt that justice would not call for the opening of the judgment, resting as it does on the cause of action in contract. His affidavit is seriously opposed, and the balance against him is made by the fact that long after the judgment was obtained, he was notified of its existence, and that plaintiff intended to proceed against him. He acquiesced from the time the suit was begun in its prosecution, so far as he believed it did not charge him with a violation of duty, or render him liable to arrest, and in the judgment from October, 1883, to January, 1884, when he was arrested on execution. The action of the judge in refusing to set aside the judgment should not be disturbed.

Order affirmed, without costs to either party.

Ingraham, J., concurred.  