101 N.Y.S. 627 | N.Y. App. Div. | 1906
'The action is for damages for the detention of a do[g, the property of the plaintiff,' which had been intrusted, to defendant- for .medical treatment. The complaint alleged plaintiff’s ownership of - the dog ; that' it had been in defendant’s possession, and that defendant-' detained it from plaintiff. The value of the dog is alleged, and judgment is, asked- for the recovery of the possession; of the dog, or ■for the value thereof in case a delivery cannot be had. In the 3d paragraph of the Complaint it is, alleged '“ that the said chattel hag
The words quoted are taken from section 549 of the Code of Civil Procedure, which is entitled “ When right to arrest depends upon nature of action,” and which provides as follows: “ § 549. A defendant may be arrested in an action, as prescribed in this title,
“ 1. To recover a fine or penalty.
“2-. To recover * * * a chattel where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed or disposed of so that it cannot be found or tahen by the sheriff,\ and with intent that it should not be so found or tahen, or to deprive the plaintiff of the benefit thereof; or to recover for money received, or to recover property or damages for the conversion or misapplication of property where it is alleged in the complaint that the money was received or the property was embezzled or fraudulently misapplied by a public officer, Or by an attorney, solicitor or counselor, or 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. Where such allegation is made the plaintiff cannot recover unless he proves the same on the trial of the action; and a judgment for the defendant is not a bar to the new action to recover the money or chattel.” It will be perceived on a careful reading of this extract from subdivision 2 of section 549 that there are two classes of cases in, which it is permitted to insert special allegations in the complaint not strictly essential to the statement of a complete cause of action. These are, an action to recover a chattel, which is the case at bar,
The question involved in this appeal then is whether in an action to recover a chattel, where the complaint contains the statutory allegations of- fraudulent concealment, the plaintiff may ignore these allegations, offer no proof to sustain them and yet recover judgment. The plain language of the Code .seems to inquire that the question should be answered in the negative, and it would be necessary to say nothing further, except for the fact that isome confusion upon the subject seems to have crept into the cases. The court below (50 Misc. Rep. 661) affirmed the judgment oñ the authority of McGuire, v. Bausher (52 App. Div. 276), and .in the course of its opinion in, that case the court certainly used language ¡which, taken by itself, would seem to justify the affirmance of this! judgment. It appears upon a careful reading of the opinion, however,, that,the court was dealing with. a. judgment from -the Municipal Cjourt .and based . its-decision'upon Matter of Zeitz (12 Civ. Proc. Rep. 423), wherein it was held that subdivision 4 of section 549 of the yode, reqriiririg •that fraud must be proved at the trial, does not apply to the District Courts of Dew York city, of which the Municipal Court was the continuation. An examination of the general; scheme of the Code as to the right to arrest the defendant and to issue a body execution against him constrains us to take a different j view in a case like the present. There are two classes of actions in which orders of arrest may issue. Section 549 deals with cases iff which the right to.arrest a defendant depends upon the nature of the cause of action, that is to say, upon the allegations of the complaint, for the nature of the cause of action Can be determined only by the allegations of the complaint. In actions embraced within this section a ■ body execution may issue upon the judgment whether an order of arrest has been, issued in-the action or not. (Code Civ. Proc. § 1487; Lehman v. Mayer, 68 App. Div. 12; Sherman v. Grinnell, 159 N. Y. 50.) The other class -of cases ¡is embraced in section 550, where the'right to an order of arrest depends.riot upon
Pattbrson, In'graham, Laug-bxin and Clarke, JX,. concurred.
Determination and judgment reversed ■ and nevi trial ordered, with costs to appellant in this court and in the courts below to abide event. Order filed.
Code Civ. Proc. chap. 7, tit. 1.— [Ref.
See Laws of 1876, chap. 448, §§ 549, 550, as amd. by Laws of 1877, chaps. 416, 423; Laws of 1879, chap. 542, "and Laws of 1886, chap. 672.— [Rep.