
    CATLIN v. ADIRONDACK COMPANY.
    
      N. Y. Court of Appeals,
    
    1880.
    [Reversing 20 Run, 19.]
    Action against Carries.—Pleading on Contract or in Tost.— Execution against the Person.
    The liability of. a common carrier for the non-delivery of goods intrusted to him for carriage, may be enforced by an action in either of the forms formerly known as assumpsit or tort, at the option of the pleader.
    Where the summons was in the form of an action for money on a contract, and the complaint alleged that the defendant’s business was to carry goods for hire, the delivery of goods to defendant, payment ■ of charges, the undertaking of defendant to deliver, and the loss of goods, of the amount claimed with interest,—Reid, that the action was upon contract.
    An action against a common carrier for the non-delivery of goods, in the form of an action on contract, is not an action for the “injury of property,” within Code Qiv. Pro, § 549, so as to warrant an execution against the person.
    William H. Gatlin sued defendants to recover for goods taken from three trunks of plaintiff, sent by Mm as freight by the defendant, from Hadley, Saratoga county, New York, to Rye, Westchester county.
    The allegations of the complaint were as follows: “That, at the several times hereinafter mentioned, the defendant was a corporation, duly created and existing under the laws of the State of New York, and engaged in carrying goods for hire. That on or about the twenty-second day of November, 1872, the plaintiffs delivered to and left in the possession of the defendant, at- the station of Hadley, in Saratoga county, New York, three trunks, to be conveyed as freight to Rye, Westchester county, New York.
    “That the defendant undertook and became responsible to the plaintiffs for the due and safe transport of said trunks to their said destination. That said trunks were unduly delayed in transportation, to the great annoyance and inconvenience of the plaintiffs, and were not delivered at their said destination at Rye till on or about the ninth day of December, 1872, having thus been about eighteen days in transportation, that should not have occupied more than four or five days, at the very most. That after said trunks had been received by the plaintiffs at their destination aforesaid, and the charges for their transportation duly paid, it was found that each and every one of said three trunks had been broken open since their delivery to the defendant, and while said defendant was responsible to the plaintiffs for their safety, and numerous articles, of the aggregate value of $400, unlawfully taken therefrom. Wherefore,” &c.
    The plaintiffs first recovered judgment. It was afterwards reversed on appeal. On a new trial the complaint was dismissed, and defendant entered judgment for costs. An execution against the property of plaintiff being returned unsatisfied, an execution was issued against his person. The plaintiff was arrested and held in custody until he paid the money to the sheriff.
    Potter, J., granted an order vacating the execu- . tion against the person, and directing the sheriff to return the money collected under it, for the reasons stated in his opinion given below. ,
    
      
      The supreme court, at general term, held that this complaint was not on contract, but in tort; and reversed the order.
    Other facts appear in the opinion of Potter, J.
    
      Marshall P. Stafford, for plaintiff, appellant.
    —This action arises out of contract (Hutchins on Carriers, § 1; Jones on Bailm. 1 ; Schouler on Bailm. [1880] 294 ; 2 Broom & H. Com. [ed. 1875] 183; 2 Kent Comm. 597; Angell on Carriers, §§ 434, 461; 2 Greenl. on Ev. § 210 ; Chitty on Carriers [Am. ed.] 85; Campbell v. Perkins, 8 N. Y. 430, 439 ; People v. Bennett, 6 Abb. Pr. 343, 347 ; Bates v. Reynolds, 7 Bosw. 685 ; Tuttle v. Smith, 6 Abb. Pr. 329 ; Ayres v. Western R. R., 48 Barb. 132,136). And, more specifically, the liability of a common carrier for the loss of goods is founded on a contract of insurance (Jeremy on Carriers, 34 ; 2 Kent Comm. 598 ; Lawson’s Cont. of Carriers, § 2 ; Angell on Carriers, §§ 152, 521; Chitty on Carriers, 83, 85; Story on Bailm. §§ 490,491; Jones on Bailm. 167; 2 Wait’s Act. and Def. 24 ; Hulett v. Swift, 33 N. Y. 571, 572; Merritt v. Earle, 31 Barb. 38, 44). This action was not for the “injury to property” within section 549 of the Code of Civil Procedure, so as to warrant an execution against the person. To warrant an execution against the person, when no order of arrest has been granted, the complaint must be such that an order of arrest would have been granted had application therefor been' made on the complaint alone (People ex rel. Burroughs v. Willett, 26 Barb. 78, 82; Code Pro. § 288 ; 4 Wait’s Pr. 116).
    -, for defendants, respondents.
   The court of appeals unanimously reversed the decision of the general term, and adopted the opinion of the special term, which was as follows:

Potter, J.

This is a motion to set aside an execution issued against the person of plaintiff, upon a jndgment against him by defendant for the costs of this action, upon the ground that the gravamen of the complaint is a breach of contract, and not a tort.

The liability of a common carrier for the non-delivery of goods intrusted to him for carriage may be enforced by an action in either of the forms formerly known as assumpsit or tort, at the option of the pleader.

The rules of liability and defense were the same in each. If the pleader chose to predicate it upon contract, he would allege a contract, the consideration, and the breach or non-fulfillment of it.

If he chose to predicate it upon tort, he would allege the custom of the realm, the loss by conversion, &c. Certain incidents are peculiar to each form of action. In the former was to be observed the same rule as to joinder of parties as in other actions upon contract. In the latter the same rules in that respect applied as to actions for tort.

So, too, since the act to abolish imprisonment for debt and the adoption of the codes, there has been a distinction in the executions issuable in the different forms of action.

In the former, execution can only issue against the property. In the latter, it may issue against the person of the party. Whether this action belongs to one or the other of these classes depends upon the form of the summons, and especially upon the allegations in the complaint. The evidence upon the trial is not before me on this motion.

The summons is in the form prescribed in an action for money upon contract. The complaint alleges that the defendant was engaged in carrying goods for hire, the delivery to defendant of certain trunks by the plaintiff, to be conveyed to Rye. That defendant undertook for the safe transport of said trunks to their destination. That the charges for their transportation were duly paid. While in defendants’ possession, and while they were responsible for the safety of said tranks, articles of the value of $400 were taken therefrom, and a demand for judgment for that sum, with interest thereon from the time the trunks and their contents were delivered to and received by defendant.

These are essential allegations of an action upon contract, and in an action upon tort the essential allegations of the complaint are that defendant was a common carrier, the custom appertaining thereto, and his duty as such, the loss of goods through defendant’s negligence or conversion, and the damages sustained by plaintiff by reason of the loss of his goods. These allegations are wanting in the complaint in this case.

On the contrary, the gist of the action, is the non-fulfillment of the undertaking or contract to carry and deliver safely, as alleged in the complaint.

My conclusion is, that the action is upon contract, and as no order of arrest has been obtained, for any matters incident to or extrinsic to the contract, neither party to it (if the defendants are not a corporation) can be arrested upon execution issued in it. I think these views are supported by Bank of Orange v. Brown, 3 Wend. 158; Campbell v. Perkins, 8 N. Y. 430; Brown v. Treat, 1 Hill, 225.

Motion granted, with $10 costs of motion.

The order of general term was accordingly reversed, and the exécution set aside.  