41 Jones & S. 531 | The Superior Court of New York City | 1877
— Section 288 of the Code provides that if the action be one in which the defendant might have been arrested, as provided in sections 179 and 181, an execution against the person of the judgment debtor may be issued; but no such execution shall issue, unless an order of arrest has been served, as provided by the Code, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by section 179.
Under the decision in Wood agt. Henry (40 N. Y., 124) the phrase in the statute, “ statement of facts,” must be construed to mean, and be confined to, a statement of such facts as are constitutive parts of the cause of action.
No order of arrest having been obtained, the execution cannot be sustained on the ground of the existence of such an order. v
In the view hereafter expressed an order of arrest could not have been granted in this case, except on affidavit showing that defendant was either a non-resident of the state, or about to remove therefrom. But this question is not now before me, for no facts appear which call for a decision upon that point.
It therefore remains to be seen, only, whether the facts alleged in the complaint which constitute the cause of action, show one of the causes of arrest specified by section 179. It is contended that they do, it being claimed that the complaint sets forth facts constituting a cause of action for an injury to the person.
It is true that the complaint sets forth a cause of action for negligence. It is therefore founded on tort. But the tort alleged is not such as will authorize an arrest of the defendant.
Even if the term “injury to person,” as used in section 179, can be deemed to include all kinds of personal injuries, be they occasioned by acts of omission or of commission on
The case at bar is not an action for an injury to the person of the plaintiff, but a statutory action founded upon the death of plaintiff’s intestate. It could not have been maintained at common law. It is purely the creature of a statute. The statutes under which such actions are now maintainable are: Laws 1870, chapter 78, page 215, amending Laws 1847, chapter 450, page 575, and Laws 1849, chapter 256, page 338. They provide for^the recovery of pecuniary damages not exceeding $5,000, but give no remedy against the person of the defendant.
They are in derogation of the common law, and hence their provisions cannot be extended and deemed to confer, by implication; a right of arrest, as long as their language is not fairly susceptible of such an interpretation.
The execution against defendant’s person must be set aside, with ten dollars costs.