19 Abb. Pr. 14 | N.Y. Sup. Ct. | 1864
The motion is made upon the ground that the defendant is not liable to be imprisoned upon an execution in this case. The complaint is for a wilful and wrongful injury to plaintiff’s property, which she obtained under the will of her father, and for wrongfully and wilfully
The complaint sets up no alleged doubt or difference between the parties as to their true rights under said will; it presents no question of doubt, and it makes no allegation that the defendant did what he did, under a claim or pretence that he had the right so to do under said will; on the contrary, all the allegations on that subject are that he did the wrongs wilfully, wrongfully, and illegally.
The gravamen of the action is the wrongs done to the plaintiff’s property. There is but one count, and that asks redress for past wrongs and protection for the future. Lambert a. Snow, 17 IIow., 517, has no application to such a case. There, there were two distinct causes of action, for one of which the defendant could be held to bail, and not for the other. Here are no two causes of action. The action is substantially for injuries, wilful injuries to plaintiff’s property. Nor have the other cases cited by defendant’s counsel any legitimate bearing here. (32 Barb., 83; 1 Hill, 225 ; 7 do., 182 ; or 2 Cow., 262.) This case comes within the plain provision of the Code, § 179, for injuring property.
The order appealed from is affirmed, with $10 costs.
Order accordingly.
Present—Peckham, Miller and Ingalls, JJ.