92 N.Y.S. 29 | N.Y. App. Div. | 1905
The plaintiff, an infant, eight years of age,, brought this action to recover for the injuries sustained by being run over by a hansom cab, the property of the defendant. He alleged in the complaint that “ said defendant and servant were negligent, reckless and careless and unskillful in the management and operation of said hansom vehicle and the management and control of said horse or horses and in the manner of driving the same and in consequence thereof and without fault on the part of the plaintiff he was knocked violently to the. ground by said horse and vehicle and run overthat. “ solely by reason of the defendant’s negligence as aforesaid plaintiff was run over,” and that by reason thereof the plaintiff sustained damage. An answer was interposed which was substantially a denial of the allegations of the complaint. The action was tried and a verdict rendered for the plaintiff for the sum of $3,000, upon which judgment was entered. Execution against the property of the defendant having been returned unsatisfied, an execution against the person was issued, whereupon lie moved to set aside this exe
The right to issue an execution depends upon the Code of Civil Procedure. Section 1487xprovides that' an execution against the person of the judgment debtor may be issued thereupon (Subd. ■1) where the plaintiff’s right to arrest the defendant depends upon the nature of, the action, and (Subd. 2) in any other case ,where an order of arrest has been granted and executed in the action! Section 549 of the Code of Civil Procedure provides that the defendant, may be arrested in an action brought to recover damages, for a personal injury-. Section 3343 provides that “ In construing this act, * * .* 9. A personal injury ’ includes libel, slander, criminal conversation, seduction and malicious prosecution'; also an assault, battery, false imprisonment, or other actionable injury to the person either of the ■ plaintiff or .of another.” Thus in an action to recover damages for actionable injury to the person of the plaintiff, the defendant' may be arrested, and- a judgment in such an action may be enforced' by execution against the person, as the plaintiff’s right to arrest the defendant depends upon the nature of the action. This construction was given to these provisions of the' Code of Civil Procedure by the General Term of the New York Superior Court in Ritterman v. Ropes (52 N. Y. Super. Ct. 237).
The defendant claims that the right to arrest in an action to recover for personal injuries' depends, not upon the nature of the action, but upon proof that the defendant was personally negligent, as distinguished from a liability created by the negligence of his servant, a distinction which I cannot find in-tlie provisions .of the Code of Civil Procedure. There are two cases which sustain the defendant’s contention. . The first is the case" of Lasche v. Dearing (23 Misc. Rep. 722), a decision of the Special Term of the Supreme Court. The second'is Davids v. Brooklyn Heights R. R. Co. (45 Misc. Rep. 208; 92 N. Y. Supp. 220), a decision of the County Court of Kings county. In Lasche v. Dearing the court construes the words other ractionable injury to the person ” in subdivision 9 of section 3343 of the Code of Civil Procedure, as applying, only to cases of the
Van Brunt, P. J., O’Brien and Hatch, JJ., concurred ; Patterson, J., concurred in result.
Order affirmed, with ten dollars costs and disbursements.