
    The Steamship Richmond Hill Company (Limited), Appellant, v. John C. Seager and Mark Seager, Surviving Partners of Charles L. Seager, Deceased, Respondents.
    
      Execution against the person,'—■ when authorized by the nature of the.action—conditions precedent thereto —-judgment without application to the court —proof of the facts alleged, in the complaint not required.
    
    A complaint which alleges that the defendants as agents for the plaintiff received funds for the use of the plaintiff and collected accounts for freight and other moneys belonging to the plaintiff, amounting to §7,000, over and above all offsets thereto, all of which sums were received in a fiduciary capacity by the defendants, sets forth a cause of action the nature of which entitles the plaintiff to arrest the defendants, and under it the plaintiff may, upon the default of the defendants, enter judgment without application to the court, and upon the return unsatisfied of an execution issued thereon against the property, may issue an execution against the persons of the defendants.
    The provisions of subdivision 3 of section 549 of the Code of Civil Procedure, in relation to proof of the allegations of such a complaint that the moneys were received in a fiduciary capacity, apply only where a defense is interposed and a trial becomes necessary. (Eayerweather v. Tucker, 35 Abb. N. 0. 396, overruled.)
    An execution against the person, although not issued within three months after the entry of j udgment, is not void under section 573 of the Code of Civil Procedure, and in case it is so issued, the defendant’s remedy is by an application to the court for his discharge from imprisonment or to he relieved from imprisonment under the mandate, on which application plaintiff has the right to show a reasonable cause why the application should not be granted.
    
      Semble, that an execution against the person is not within the prohibition of section 1377 of the Code of Civil Procedure, where an execution against the property of the defendant has been issued within five years after the entry of judgment.
    It is not required that an execution against the person shall describe the execution which has issued against the debtor’s property, nor does the statute provide that a mistake in such description shall invalidate the execution against the person.
    Appeal by the plaintiff, The Steamship Richmond Hill Company (Limited), from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the . county of New York on the 29th day of April, 1898, vacating an execution issued in the action against the persons of the defendants.
    
      Esek Oowen, for the appellant.
    
      Lorenzo Ullo, for the respondents.
   Ingraham, J.:

The complaint in this action alleged that the defendants, with one Charles L. Seager, now deceased, were copartners doing business in the city of New York, and as such wore the agents for the plaintiff for the purpose of collecting the freights and other moneys belonging to the plaintiff and of making disbursements for the vessel of the plaintiff in the port of New York; that in the course of said business the defendants drew upon the plaintiff drafts, which were accepted and paid by the plaintiff, for the purpose of placing funds in the hands of the defendants for the use of the plaintiff; that the defendants collected for the account of the plaintiff freights amounting to the sum of over §7,000 over and above any disbursements which the defendants were required to make and after deducting their charges and commissions ; that each and all of said sums received by the said defendants were over and above the commissions and charges to which they were entitled as agents, and that on the 25th day of April, 1884, there remained in the hands of the defendants belonging to the plaintiff the sum of $7,983.42, no part of which has been paid, although payment thereof has been duly demanded ; that the aforesaid sums and the balance above stated were money belonging to the plaintiff received by the defendants in a fiduciary capacity and as agents for the plaintiff. This complaint was verified and served upon the defendants on February 7, 1889. The defendants failing to answer or demur within the time allowed by law, judgment was entered by default on October 29,1892. Execution against the property of the defendants was issued and returned unsatisfied, and, on February 28, 1898, an execution against the person of the defendants was issued, which, upon motion, the court set aside, and this is an appeal from the order entered on such motion.

The learned judge below based the order setting aside the execution upon the fact that the judgment was entered without application to the court under section 420 of the Code of Civil Procedure; and as he assumed that judgment in an action in which the plaintiff was entitled to issue an order of arrest could not be entered without an application to the court upon the default of the defendants, he seems to have held that by entering this judgment without application to the court the plaintiff waived its right to issue an execution against the person. The right, however, of the plaintiff to enter judgment without application to the court, is not made by the Code dependent upon the remedy appropriate to enforce the judgment. By section 420 of the Code it is provided that judgment may be taken without application to the court, where the complaint sets forth one or more causes of action, each consisting of the breach of an express or implied contract to pay money received or disbursed, and thereupon demands judgment for a sum of money only. It would seem that- the complaint in this action comes expressly within the terms of this section. It alleges that the defendants, as agents of the ¡Dlaintiff, received and collected moneys for the account of the plaintiff, amounting to a sum named, over and above any disbursements which they were required to make, and, after deducting their charges and commissions, that the balance was as above stated; that the money was received bv the defendants in a fiduciary capacity and as agents for the plaintiff, and that there is now due from the defendants the sum of money named, together with interest thereon, and the plaintiff demands judgment against the defendants for a. sum of money only.

By section 1212 of the Code it is provided that, in an action specified in section 420, where the summons has been personally served upon the defendant, and a copy of the complaint served with the summons, the plaintiff may take judgment by default as follows: “ 1. If the defendant has made default in appealing, the plaintiff must file proof of the service of the summons, and of a copy of the complaint or the notice; and also proof, by affidavit, that the defendant lias not appeared. Whereupon the clerk must enter final judgment in liis favor.

2. If the defendant had seasonably appeared, but lias made ctefan. in pleading, the plaintiff must file proof of the service of the summons and of the appearance, or of the appearance only; and also proof, by affidavit, of the default. Whereupon the clerk must enter final judgment in his favor.”

By section 1213 of the Code it is provided that, where final judgment may be entered by the clerk, as prescribed in the last section, the amount thereof is to be determined, as follows: If the complaint is verified, the judgment must be entered for the sum for which tlie complaint demands judgment, and that if a computation of interest is necessary it must be made by the clerk. In this action the complaint was verified, and the summons and complaint were served upon the defendants, proof of which was filed with the clerk. There was also proof filed that the defendants had not answered or demurred ; and upon this, the clerk, having computed the interest, entered judgment for the amount demanded by the complaint, with interest and costs.

It is difficult to see upon what ground it can be claimed that this judgment was at all irregular. The complaint is exactly within the provisions of section 420 of the Code, which entitled the plaintiff to take judgment without application to the court, and-being thus an action specified in - section 420 of the Code, it was the duty of the clerk to enter final judgment in favor of the plaintiff.

There is nothing in section 549 of the Code that at all affects this question. The provision of subdivision 2 of that section that e‘ where such allegation is made the plaintiff cannot recover unless he proves the same on the trial of the action,” plainly applies only to a case where a defense is interposed and a trial becomes necessary. Upon a default in the pleading, whether the j ndginent is to be entered by the clerk, or the amount is to be ascertained by a writ of inquiry or a reference, or by the court upon an application for judgment, the defendant by failing to answer admits the facts alleged in the complaint, and that the plaintiff is entitled to judgment demanded, there can be no trial of the action because there is no issue to try. By the service of the verified complaint upon the defendants they were apprised of the demand made upon them by the plaintiff, and the amount of the judgment which would be entered against them in case of their failure to answer the complaint. No proof of the cause of action, the complaint being verified, was required by the Code to entitle the plaintiff to judgment where the defendants had suffered a default and had failed to deny the allegations of the complaint or interpose a defense; and upon the neglect of the defendants, either to answer or demur, no trial of the action was possible. If the case was one within section 420 cf the Code, the plaintiff would be entitled upon such default to have the judgment entered in his favor by the clerk. In' case the action was not one within that section, then he could only obtain judgment upon application to the court; but in neither case would there be a trial, and the provision that before the plaintiff would be entitled to judgment he must prove the facts required to be alleged in the complaint by section 549 of the Code, related only to a case whereby the action of the defendant in interposing his defense the trial had become necessary. The contrary seems to have been held in the case of Fayerweather v. Tucker (25 Abb. N. C. 396), but that was a Special Term decision, and we do not think it correctly decided. In certain cases the Code requires the plaintiff to prove his canse of action before he can have a judgment by default, as in the case of an action for divorce, or when the summons is not personally served; but the fact that such special direction is necessary shows that, where there is no such requirement, such proof is not essential.

The next question presented is whether or not the plaintiff was entitled to issue an execution against the defendants under section 1487 of the Code. It is there provided that where a judgment can be enforced by execution, as prescribed in section 1240 of the Code (and this is clearly a case within the provisions of that section) an execution against the person of the judgment debtor may be issued thereupon where the plaintiff’s right to arrest the defendant depends upon the nature of the action. We think that the plaintiff’s right to arrest the defendants in this case depended upon the nature of the action. By section 549 of the Code it is provided that a defendant may be arrested in an action to recover property or damages for the conversion or misapplication of property where it is alleged in the complaint that the money was received * * * by an officer or agent of a corporation or banking association in the course of his employment, or by a factor, agent, broker or other person in a fiduciary capacity.” How, it is alleged in this complaint that the money, to recover for which this action was brought, was received by the agent of a corporation in the course of his employment, and in a fiduciary capacity. This was a material allegation in the complaint to entitle the plaintiff to arrest the defendants in the action. As was said by Yann, J., in the case of Moffatt v. Fulton (132 N. Y. 514): It was clearly the intention of the Legislature by its last amendment of section 549, to require a plaintiff, intending to arrest the defendant, to predicate his action upon some ground of wrongdoing mentioned in the statute, as a substantive part of the cause of action, so that he could defend himself before a jury and recover costs if such defense was successful. * * * It changed the nature of certain causes of action somewhat, by requiring facts to he alleged and proved in addition to those previously required to be alleged or proved in order to recover.” Thus, in a cause of action brought under section 549 to recover for money received by an agent in the course of his employment, or in a fiduciary cajiacity, the capacity in which the defendants received the money, was “ a substantive part of the cause of action; ” and the plaintiff’s right to arrest the defendants depended upon the nature of the action, viz.: That the defendants had received this money in the fiduciary capacity specified in section 549 of the Code.

Section 550 of the Code enumerates the actions in which an order of arrest may he granted, where the right to arrest does not depend upon the nature of the action, but depends upon other facts than those alleged in the complaint which were require 1 to be proved by affidavit, and thus section 1487 of the Code applies to a case where an order of arrest has been issued under section 550 of the Code. We think, therefore, that this judgment was regularly entered without application to the court, and that the plaintiff was entitled to issue an execution against the person of the defendants, although no order of arrest had been granted in the action.

It is also claimed by the defendants that the execution was irregular under section 572 of the Code, as having been issued more than three months after the entry of judgment. But this section does not apply, as a failure to issue an execution for more than three months after the entry of judgment does not take away the right to issue such execution against the person. It is there provided that if the plaintiff neglects to issue execution against the person of the defendant within ten days after the return of the execution against the property, and in any event neglects to issue the same within three months after the entry of the judgment, the defendant must, upon his application, made upon notice to the plaintiff, be discharged from custody if he has already been taken, under the mandate against him in such action, or if he has not yet been imprisoned therein, he relieved from imprisonment by virtue of such mandate by the court in which the action was commenced, unless reasonable cause ■ is shown why the application should not be granted. Although no such execution was issued within the- three months named, the plaintiff would he entitled to issue his execution and then have the question of his right to enforce it determined on an application made, either to discharge defendant from imprisonment, or to relieve him from imprisonment under the mandate, as the plaintiff would have the right upon such application to show a reasonable cause why it should not be granted. It might appear that the defendant had been absent from the State during all the period that had elapsed since the judgment was entered.

It is also claimed that this execution was prohibited by section 1377 of the Code. But assuming that the execution there mentioned is an execution against the person, it is expressly provided that where an execution is issued upon a judgment, within five years after the entry of the judgment, and has been returned wholly or partly unsatisfied or unexecuted, the prohibition contained in the section does not apply ; and as an execution against the property was issued within five years after the entry of judgment, the prohibition is not applicable. Nor does the fact that the execution against the person recited that the execution had been issued to the city and county of New York, when, in fact, it had been issued to the county of Kings, make the execution irregular. There is nothing in the statute that prescribes that this execution against the person should describe the execution which had issued against the property, or that a mistake in such description would invalidate the execution; and the fact was proved by affidavit and uncontradicted that execution had been issued against the property of the defendants to the sheriff of the county in which they reside, as required by section 1489 of the Code.

The other objections taken by counsel for the defendants to the execution are not substantial and do not require notice. It follows that the order appealed from must be reversed and the motion to set aside the execution denied, with ten dollars costs and disbursements of this appeal.

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Patterson, J., taking no part.

Order reversed, and motion to set aside execution denied, with ten dollars costs and disbursements of this appeal.  