93 N.Y.S. 285 | N.Y. App. Div. | 1905
The action was brought in the County Court of; Kings county to . recover damages alleged to - have been suffered by the plaintiff as ' the result' of an assault upon Ms person: committed by one of the defendant’s Conductors while he was a, passenger on one' of its street cars. The trial resulted in a verdict in the defendant’s favqr,. and in default of property the plaintiff was arrested and imprisoned on an execution • against the. person" issued upon a judgment entered against him for the costs. The order appealed from sets the execution aside- upon the ground that such' process may not issue against . an unsuccessful plaintiff unless similar process could have been issued in his favor had he recovered a judgment, and that such process could not issue in his behalf unless the wrong complained of, in the action was committed by the defendant personally as distinguished from á wrong for the consequences of which the defendant is liable only by imputation of law. ' The: ground of the decision is expressed by the learned county judge in an elaborate and forcible opinion (45 Misc. Rep. 208), but I am constrained to the view that the reasoning and conclusion are unsoundl
- If the nature of the action is such that an execution against - the person could be issued upon a judgment recovered.by the plaintiff, there can be no doubt that such an execution may issue on -a judgment entered against him for the costs, This was held in Philbrook v. Kellogg (21 Hun, 238), and in Miller v. Woodhead (52 id. 127), arid quite recently by this court in Saffier v. Haft (86.App. Div. 284). The controlling determination is the tortious character of the cause of action and not the mere consideration whether or -not the arrest and imprisonment of the -defendant would for any .reason, such as incorporation or ■ otherwise, be a practical imp.ossi
The provisions of the Code of Civil Procedure permit the issuance of an execution against the person in an action to recover damages for such a personal injury as is asserted in the complaint herein, whether the gravamen of the cause of action be regarded as the defendant’s negligence in failing to fulfill. the duties imposed upon it as a carrier of passengers or as the physical assault committed by its servant. The fact that the wrong was inflicted by an agent would not in itself deprive the injured party of the right to resort to the lawful methods provided for the collection of his claim for damages. By subdivision 2 of section 549 of the Code of Civil Procedure the right to arrest is conferred where the action is brought to recover damages for a personal injury, and by subdivision 9 of section 3343 a personal injury is defined to include an assault or other actionable injury to the person. It follows that ah arrest may be lawful where the action is for injuries resulting from either negligence or assault, and no case is cited in support of the proposition upon which the order appealed from is based, viz., that the right is dependent upon the defendant’s individual or personal transgression and, may not be extended to a case where his servant acting in his
' The order should be reversed.
Woodward, Jenks,Rich and Miller,i JJ., concurred.
Order of the County Court of Kings county reversed, with ten ■dollars costs and disbursements. ' ■; .