Opinion
Argued March 23, 1899
Decided April 18, 1899
Roger M. Sherman and Joseph A. Thompson for appellant.
William V. Rowe and Treadwell Cleveland for respondents.
The plaintiff seeks to recover damages for alleged false imprisonment under an execution against the person. The plaintiff is an attorney and counselor at law, residing in the city of New York, and the defendants Grinnell and Bowdoin are the executors of the will of the late Moses H. Grinnell, formerly collector of the port of New York, although they are sued individually in this action.
The executors of Mr. Grinnell in 1883 made the plaintiff their attorney to collect from the United States government certain money due the testator from fines and penalties under provisions of law when collector of the port of New York; the plaintiff in pursuance of such employment in May, 1885, received for the executors from the United States government the sum of $1,778.95.
In June, 1885, the executors demanded payment by the plaintiff of this sum, less his fees, but it was refused.
In October, 1885, the executors began suit against the plaintiff in the City Court of New York for the money so collected, and in November, 1886, recovered judgment therefor.
In the proceedings to enforce this judgment the defendant Cleveland, one of the plaintiff's attorneys in the City Court action, and Hardon, one of their assistants, acted for and on behalf of plaintiff's attorneys.
An execution against the property having been returned unsatisfied, an execution against the person was issued April 6th, 1887.
On February 15th, 1889, a second execution against the person was issued, and it is upon the alleged arrest thereunder that the present action for false imprisonment is based.
The plaintiff here (defendant in City Court action) urges several reasons why the City Court judgment was not enforceable and why his arrest was illegal.
They may be generally stated: (1) That the original cause of action is upon its face against public policy for the reason that the moneys paid to plaintiff by the duly constituted authorities of the United States government was in violation of a Federal statute, and that plaintiff could not lawfully pay them over to his clients; (2) that the judgment of the City Court, assuming it to be regular, did not authorize the issuing of an execution against the person; (3) that the right to issue the second body execution had been waived by the contract of November, 1888; (4) that the right to arrest was exhausted under the first execution.
These various grounds will be considered.
No question is presented to this court as to the cause of action in the City Court being on its face against public policy as in violation of a Federal statute. The judgment entered in that action was affirmed by the General Term of the City Court and the General Term of the Court of Common Pleas for the city and county of New York. The case was then taken to the Supreme Court of the United States, where the writ of error was dismissed on the ground that there was no general question involved.
Speaking of plaintiff's position, Chief Justice FULLER, of the Supreme Court, said, referring to the City Court: "The court simply decided that he could not deny his clients' title after having collected the money for them, and he assigned as error that the court had held that he was so estopped. The ground upon which the judgment rested was broad enough to sustain it without deciding any Federal question, if there were any in the case." ( Sherman v. Grinnell, 144 U.S. 198.)
On this appeal we must treat the City Court judgment as regular.
The first question presented is whether the judgment authorizes the issuing of a body execution, and if so, was the granting of an order of arrest a condition precedent thereto.
The complaint in the City Court action very clearly charges plaintiff with conversion of money collected for his clients, the plaintiffs in that case, and the court, after finding all the facts, holds, as a conclusion of law, that the defendant converted the money. The first body execution was not issued until April, 1887. At that time section 549 of the Code of Civil Procedure had been amended by chapter 672, Laws of 1886, so as to read as it now stands.
This section provides that a defendant may be arrested in an action to "recover for money received, or to recover property or damages for the conversation 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 an attorney, * * * or by an agent, broker, or other person in a fiduciary capacity."
Section 1487 of the Code, subdivision one, provides for an execution against the person "where the plaintiff's right to arrest the defendant depends upon the nature of the action."
In such a case the granting of an order of arrest before execution issued is not necessary. (Code Civ. Pro. § 1487, subd. 2.)
It follows that the first body execution under the judgment was regular. The other objections to the efforts made to enforce the City Court judgment may be considered in determining the regularity of the second body execution issued February 15, 1889.
The plaintiff insists that the right to issue this execution was waived by a certain contract entered into in November 1888, between the parties to the City Court action and others. There are two answers to this suggestion — the contract contains no provisions upon which such a contention can be based and the City Court has by order refused to vacate this execution.
The plaintiff further insists that the right to issue this execution did not exist, as the power to arrest was exhausted under the first body execution.
The plaintiff maintains that he was arrested under the first body execution, remained on the jail limits six months and was then discharged by virtue of section 111 of the Code.
If this is established the second body execution was clearly irregular. The learned trial judge held that the plaintiff had failed to prove these facts.
The plaintiff argued in the case at bar, when opposing a motion made by defendants for a directed verdict, that he having shown an arrest under the first execution, the presumption was that he remained on the limits and was duly discharged at the end of six months.
Assuming, what is controverted, that the formal arrest under the first execution was established, yet it was proved by defendants that on the same day the defendant in the execution procured an order to show cause why it should not be set aside and staying the proceeding of the plaintiff and the sheriff. The motion to set aside the execution was denied, but the sheriff rested under the stay through inadvertence until January 15th, 1889.
Under these circumstances and in view of the fact that neither the plaintiff, nor the deputy sheriff having the execution in charge, were sworn, the trial judge was justified in holding that plaintiff had failed to sustain the burden of proof under which he rested.
January 3d 1889, the plaintiff, having reason to anticipate body execution, obtained an order to show cause why the issuance thereof should not be restrained upon various grounds therein stated.
This motion was duly heard and denied and thereupon the second body execution issued.
It thus appears that both executions against the person have been declared regular by the court having jurisdiction, and those orders, upon this appeal, are binding on the plaintiff. ( Culross v. Gibbons, 130 N.Y. 447.)
Nevertheless we have examined the position of the plaintiff as to both executions on the merits.
There are other points discussed which we have considered but find no reversible error.
The judgment appealed from should be affirmed, with costs.
All concur.
Judgment affirmed.