17 Barb. 644 | N.Y. Sup. Ct. | 1854
The defendant was arrested on an affidavit showing that judgment was recovered against him in California, in July, 1853, for §1008.25 damages and §252.90 costs. That the cause of the recovery was moneys received by the defendant as agent of the plaintiffs; that he was consignee and agent of a ship owned by the plaintiffs at San Francisco, which was sold there, and the defendant as such agent received the proceeds and earnings of the ship. A copy of the judgment was annexed, and it showed the items on which the judgment was founded, amounting together to §3960.75, and that the de-. fendant claimed credit for moneys expended by him as such agent, amounting to §3811.28; and that there was allowed to him §3004.30 of this last sum, and that judgment was given against him for §956.45, and interest and costs. The first item in the defendant’s account was allowed to him, and showed a balance of accounts in his favor, by account rendered in December, 1849, of §211.33. Payments had been made by him and were allowed to him for entering the ship, for court fees, lawyers’ fees, cash paid the health officer, seamen’s wages, money lent to a certain person, money paid the captain’s charges for defending a suit against the captain, and giving bonds, &c. From the nature of these credits the duties of the defendant and his relation to the plaintiffs can be understood. He was not a mere agent to sell and remit proceeds. He was to take a general charge of the ship, pay all expenses of every kind connected with her, sell her and pay expenses of the sale, and then to account to the plaintiffs, not for the whole proceeds of sale less his commissions on the sale, but for the balance he might owe them after deducting all payments of any kind before then lawfully made by him, and the balance of account that the plaintiffs had previously
The defendant also insists that after judgment he is not liable to arrest. The subdivision of § 179, under which he is arrested, so far as relates to his case, is that “ in an action for money ^received by any factor, agent, broker or other person in a fiduciary capacity,” the defendant may be arrested. The plaintiffs insist that this is an action for money received by an agent, although it is founded on the judgment, as the judgment was for money thus received; and that they may go behind the judgment and show its consideration, as it is allowed to the plaintiff, when a defendant pleads an insolvent discharge to a suit on a judgment in the state where the discharge was granted, to show that the original debt was contracted in another state, and that the plaintiff resided there. The proper answer was given to tMs illustration,
It was said for the plaintiffs that an action may be brought as for goods sold only, and in the complaint no mention need be made of any fraud in contracting the debt, and yet the defendant may be held to bail for such fraud. This is so, and arises from the difference in the language of subdivision 2 from.that in sub
Mitchell, Roosevelt and Clerke, Justices.]
In subdivision 2 the language' clearly restricts the right to arrest to certain kinds of actions. It is “ in an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled or fraudulently misapplied by a public officer, &c. or by any factor, agent, broker,” &c. The action must be for the- fine, penalty, promise to marry, money received, &c., or it does not come within this subdivision. Nor-is this the only subdivision in which the right to arrest depends on the nature of the action: subdivisions 1 and 3 are like it in that respect. Subdivision 1 applies to actions for the recovery, of damages on a cause of action not arising on contract, &c., or when the action is for injury to the person, &c.; and subdivision 3 applies to actions to recover the possession of personal property. If judgment were obtained in an action for a fine or penalty, or on a promise to marry, or for a tort, or in an action for the recovery of personal property, and a suit were brought on such judgment, this last suit could not be called an action for a fine, penalty, or promise to marry, or for a tort, &c.; and so the defendant could not be arrested. Neither can the defendant be lawfully arrested in this case.
The order denying the motion to vacate the order of arrest should be reversed without costs; the defendant stipulating to bring no action for the arrest.