Farrelly v. . Hubbard , 148 N.Y. 592 ( 1896 )

The plaintiff assigned to the defendant by an instrument in writing the wages or salary due him from the New York, Lake Erie and Western Railroad Company (in whose employ he then was), for the month of December, 1886, constituting him his attorney to collect and receipt for it.

Then followed a covenant that if the plaintiff should at any time draw or receive the wages or salary so assigned he would receive the same "solely as the servant of said George J. Hubbard, and that I will bring and transport the same immediately to said George J. Hubbard and deliver it to him," etc.

The plaintiff did collect the amount due from the company, and on demand failed to pay same to defendant.

Thereupon the defendant sued the plaintiff in Justice's Court, charging him with conversion of the amount so collected.

The plaintiff, as defendant in that action, failed to defend, judgment was entered against him for the amount claimed, and an execution against his person issued thereon.

The body of plaintiff herein was taken on the execution and thereupon he paid the judgment and brought this action for false imprisonment.

The only question presented on this appeal is whether the body execution issued in Justice's Court was regular.

The Code of Civil Procedure, section 3026, provides that if the judgment is recovered against a male person in either of the actions specified in subdivision first or second of section 2895; or if an order of arrest was granted and was executed, in a case specified in subdivision third of that section, an execution against the person must issue if sufficient personal property cannot be found to satisfy the judgment.

As already stated, the action in Justice's Court was for conversion and within the second subdivision of section 2895 of the Code of Civil Procedure, if the act of the plaintiff in this action in failing to pay over the money collected by him was, as matter of law, conversion.

The plaintiff's counsel rests his demurrer upon the contention that the plaintiff was acting merely as the agent of the defendant in collecting the money, and that his failure to pay over created a debt due from plaintiff to defendant, and that his case was within the third subdivision of section 2895, that is, an action to recover money from a person acting in a fiduciary capacity, and as no order of arrest was granted, or executed, a body execution was unauthorized.

We are unable to agree with the courts below that this contention is sound.

The language of the contract of assignment, already quoted, is perfectly clear and shows that the defendant in the action in Justice's Court was acting solely as the servant of the defendant in this action, and it was his duty to have immediately carried the money or check to his assignee, and not doing so he became liable for conversion upon failure to pay over on demand.

The body execution was properly issued and constitutes a defense to this action if duly proved at the trial.

The judgment appealed from should be reversed and the demurrer overruled, with costs to the defendant in all the courts.

All concur.

Judgment reversed.