Art. 7. Enforcement of Remedies in Actions for Torts.

lessened, other than a personal injury or the breach of a contract."

The consideration of the question as to when attachment will issue, and under what circumstances would lead to the examination of matters of procedure covered by the Code, and the decisions construing the sections relating to attachment, and no effort will be made to collate the authorities upon the subject. Attention is, however, called to the fact that in those cases where an attachment is authorized, and an action is brought for the tortious act, an attachment, like other provisional remedies, is not a matter of right, and rests in the discretion of the Supreme Court. Sartwell v. Field, 68 N. Y. 341 (342).

The remedy is held to be a severe one, and not to be sustained even when granted unless the proof fairly warrants it, and not to be resorted to for the purpose of obtaining an unconscionable advantage over a defendant. McGrath v. Sayer, 19 App. Div. 321, 46 N. Y. Supp. 113.

In Penoyar v. Kelsey, 150 N. Y. 77, Vann, J., in the opinion of the court, says (p. 80): "Owing to the statutory origin and harsh nature of this remedy, the section in question should be construed in accordance with the general rule applicable to statutes in derogation of the common law, strictly in favor of those against whom it may be employed." Citing Thorpe v. Spier, 4 Hill, 76 (86).

SUBDIVISION 3.

Arrest Pending the Action.

It is provided by section 548 of the Code, under the title relating to arrest pending an action and proceedings thereon, that a person shall not be arrested in a civil action or special proceeding, except as prescribed by statute. Sections 549 and 550 provide for and restrict the right to an order for arrest pending the action, while subsequent sections of the Code relative to execution define cases in which an execution will issue against the person.

Section 549 as to the first three subdivisions relates to arrest in action for torts. Subdivision 4 provides for an arrest in action upon contract in certain cases. In such cases, however, the plaintiff can only recover when he proves the fraud on the trial of the action. The Code, as it now stands, in that respect is the re

Art. 7. Enforcement of Remedies in Actions for Torts.

sult of various amendments, more particularly those of 1879 and 1886.

Section 549 relates to the right to arrest when dependent upon the nature of the action, while section 550 provides for an arrest when it depends wholly upon extrinsic facts, and is said in Ensign v. Nelson, 49 Hun, 215, 14 Civ. Proc. 438, 1 N. Y. Supp. 685, affirmed without opinion in 112 N. Y. 674, to be a substitute for the writ of ne excat.

No extended citation of authorities as to the right to arrest will be entered upon in this connection, since the decisions relate almost without exception purely to matters of procedure which are applicable not only to actions for wrongs, as referred to in the first three subdivisions of section 549, but also to actions upon contract as provided for in the fourth subdivision.

Since the right to arrest is not, therefore, confined entirely to actions in tort, and in view of the fact that works upon procedure discuss the subject and collate the authorities very fully, no attempt will be made to enter upon a full consideration of the practice under these sections of the Code. The general rule is that a reasonably clear cause of action must appear to authorize an order of arrest, since if the plaintiff finally recovers, he will, as a matter of course, be entitled to a body execution, and where a doubtful and important question is involved, the order will be denied.

It is said in Hathaway v. Johnson, 55 N. Y. 93, that statutes authorizing arrest and imprisonment for debt, although remedial in that they are designed to coerce, by reason of the imprisonment, the payment of the debtor, are also regarded as penal, and are not to be extended by construction so as to embrace cases not clearly within them. Cited and followed in Kessler v. Levy, 11 Misc. Rep. 275, 32 N. Y. Supp. 260.

In Moffatt v. Fulton, 132 N. Y. 507, Vann, J., at p. 514, in opinion of the court, considers the amendment of 1886 to section 550, stating that it is a substitute for the writ of ne exeat, not by abolishing the right of arrest but by requiring the facts which theretofore had been stated in part outside the complaint, to be stated in it as a part of the cause of action. That it was clearly the intention of the legislature by this amendment to require a plaintiff intending to arrest a defendant to predicate his action upon some ground of wrongdoing mentioned in the statute, as a substantive

Art. 7. Enforcement of Remedies in Actions for Torts.

part of the cause of action, so that he could defend himself before a jury and recover costs if such defense was successful. This amendment changed the nature of certain causes of action somewhat by requiring facts to be alleged and proved in addition to those previously required to be alleged and proved in order to

recover.

The provisions of the Code relative to order of arrest and compliance therewith, so far, at least, as subdivision 4 of section 549 is concerned, are important in view of the provisions of section 1487 of the Code, which require, in cases other than where the plaintiff's right to arrest depends upon the nature of the action, that an order of arrest should have been granted and executed, and if executed should not have been vacated.

SUBDIVISION 4.

Execution against the Person.

Execution against the body lay at common law only in actions of trespass vi et armis, but has since been given in other actions by a variety of statutes. It is now granted only upon allegations of fraud and concealment of property in contracts and in torts. Herrman on Executions, § 367.

It is only when the judgment cannot be supported except by proof of facts warranting the arrest of the defendant that an execution cannot issue against his person unless an order for his arrest was issued and executed before judgment, and remains unsatisfied. Freeman on Executions, § 453, citing 159 N. Y. 50.

The provisions with regard to the enforcement of judgment by execution against the person will be found under different sections in widely different parts of the Code. The general provisions with regard to the enforcement of a judgment by execution are contained in section 1240, where it is provided that a final judgment may be so enforced, where it is for a sum of money, in an action of ejectment, or for dower, or in an action to recover a chattel. By section 1241 certain other judgments may be enforced by punishment for disobedience to their requirements by process for contempt.

The kinds of execution which may be issued under section 1240 are enumerated in section 1364, one of them being an execution against the person, the others executions against property.

Art. 7. Enforcement of Remedies in Actions for Torts.

By sections 1487 and 1488 the right to issue execution against the person is defined and limited, referring back to section 1240 in terms. Execution may be issued under section 1487, where the plaintiff's right to arrest the defendant depends upon the nature of the action (see § 549), or in any other case where an order of arrest has been granted and executed in the action (see § 550), if it was executed against the judgment debtor, and has not been vacated, subject to the provisions of section 1488, that the execution cannot be issued against the person of a woman, unless under the exceptions therein provided.

Thus the right to issue execution against the person, where the preliminary requisites hereinbefore set forth have been complied with, exists in two classes of cases, namely: First. Dependent upon the nature of the action; or, Second. That an order of arrest has been granted where, from the nature of the action, an execution could not otherwise issue.

This subject is very fully considered in Moffatt v. Fulton, 132 N. Y. 507, and Sherman v. Grinnell, 159 N. Y. 50, where the effect of the amendment to sections 549 and 550 in 1886 is commented upon and decided. The effect of that amendment is to render numerous previous authorities inapplicable by reason of the transfer of a portion of section 550 to section 549. 132 N. Y. 507, supra, is cited and followed in Steamship Richmond Hill Co. v. Seager, 31 App. Div. 288, 52 N. Y. Supp. 985; appeal dismissed in 159 N. Y. 574. The scope of section 549 and the right of arrest on execution under section 1487 are considered in opinion by Martin, J., in Britton v. Ferrin, 171 N. Y. 235 ́ (243).

It is said in Lehman v. Mayer, 68 App. Div. 12 (14), 74 N. Y. Supp. 194, that the cases in which plaintiff's right to arrest the defendant depends upon the nature of the action, are specified by section 549, citing cases supra. Same rule is held in Segelke v. Finan, 22 Abb. N. C. 459, 15 Civ. Proc. 417, 1 N. Y. Supp. 381. See also Roeber v. Dawson, 22 Abb. N. C. 73 (79), 3 N. Y. Supp. 122; Bussey-McLeod Stove Co. v. Wilkins, 1 App. Div. 154, 36 N. Y. Supp. 977.

By section 1372 the "requisites of execution against the person are given, which it is said must require the sheriff to arrest the judgment debtor and commit him to the county jail until he pays the judgment or is discharged by law.

Art. 7. Enforcement of Remedies in Actions for Torts.

By sections 1489 and 1490 it is provided that except in certain contingencies therein set forth, an execution against the person cannot be issued until an execution against property has been returned wholly or partly unsatisfied.

Execution against the property must be issued and returned before issuing execution against the person. Bergman v. Noble, 45 Hun, 133; Noe v. Cristie, 46 How. 496.

By section 1494 the effect of such imprisonment, when discharged at the request of the creditor, is to prevent issue of another execution against the person.

The imprisonment of a person upon execution in a civil action no longer constitutes a satisfaction of the judgment except during the continuance of the imprisonment. Hoyle v. McCrea, 42 App. Div. 313, 59 N. Y. Supp. 200, citing Code, § 1491; Koenig v. Staeckel, 58 N. Y. 475; Flack v. State of New York, 95 N. Y. 461, and Code, § 2213.

SUBDIVISION 5.

Discharge from Imprisonment.

SECTION 1. Under section 572 of the Code..

2. Under section 111 of the Code..

PAGE.

.'. 245

246

3. Discharge under sections 2188-2199, 2200-2218. 247

§ 1. Under section 572 of the Code. Under section 572 of the Code, a defendant charged under execution may be discharged from imprisonment, by reason of the delay of the plaintiff in the trial of the action, or neglect to enter judgment, or issue execution. against the person of the defendant, as therein provided.

It is said in Sweet v. Norris, 12 Civ. Proc. 175, that the limitations of time prescribed under section 572 "are to prevent a plaintiff, having a defendant in actual or constructive imprisonment under an order of arrest, from continuing his imprisonment indefinitely by delaying the entry of his judgment or by delaying to issue his execution. Before the amendment to this section, plaintiffs sometimes omitted to enter their judgments or to issue their executions for a long period, and thus held the defendants in actual or constructive imprisonment under such order, and it was for the purpose of preventing this abuse that this section was amended."