An examination of the question presented leads me to adopt the view entertained by the majority of the court at General Term. (Moffat v. Fulton, 31 N.Y.S.R. 154.) *Page 517
The question has been before that court, and with the same result, on other occasions. (Hillis v. Bleckert, 53 Hun, 499;Bartlett v. Sartorius, 25 N.Y.S.R. 629; Harland v.Howard, 32 id. 872.)
The judgment of the trial court awarded to the plaintiff $1,789.07 and costs, and authorized its enforcement out of the joint property of the defendants, the separate property of the defendant Fulton, and against the person of Fulton.
The General Term modified the judgment by striking therefrom the words "and against the person of the said defendant Robert Fulton," on the ground that the complaint does not specifically allege that Fulton received the money in a fiduciary capacity.
The appellant insists that the requirements of the Code are met when the facts alleged warrant the conclusion that the money was received in a fiduciary capacity.
A portion of subdivision 2, section 549 of the Code of Civil Procedure forms the basis of the different views contended for.
The section, so far as pertinent to the present discussion, provides that "a defendant may be arrested in an action as provided in this title, where the action is brought for either of the following causes:
1. To recover a fine or penalty.
2. To recover damages for a personal injury; an injury to property, including the wrongful taking, detention or conversion of personal property; breach of a promise to marry; misconduct or neglect in office or in professional employment; fraud or deceit; or to recover a chattel where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof; or to recover for money received or to recover property or damages for the conversion or misapplication of property where it is alleged in the complaint that the money was received or the property was embezzled or fraudulently misapplied *Page 518 by a public officer or by an attorney, solicitor or counselor, or by an officer or agent of a corporation or banking association in the course of his employment, or by a factor, agent, broker or other person in a fiduciary capacity. Where such allegation is made the plaintiff cannot recover unless he proves the same on the trial of the action, and a judgment for the defendant is not a bar to the new action to recover the money or chattel."
It will be observed that it is plainly provided that in order to bring a case within the scope of that section it must be alleged in the complaint that the money was received in a fiduciary capacity, and in determining whether it should receive a technical construction, requiring such an allegation in terms, in addition to the plain and concise statement of facts provided for by section 481 of the Code of Civil Procedure, or simply a statement of the facts, we may inquire as to the probable intent of the legislature.
Prior to the enactment of chapter 672 of the Laws of 1886, section 549 provided for cases where the arrest depended exclusively on the nature of the action, and section 550 to those where the right to arrest depended in part, at least, on facts extrinsic to the cause of action. Subdivision three of the latter section provided for a case of money received in a fiduciary capacity and misapplied. The cause of action was, ex contractu, the right of arrest extrinsic, and if an allegation of conversion was also made it was treated as surplusage and not issuable. (Segelken v. Meyer, 94 N.Y. 473-484; Donovan v. Cornell, 8 N.Y. Civil Pro. R. 283; Greentree v. Rosenstock, 61 N.Y. 583 -590.)
The order of arrest could only be granted on the pleadings and affidavits, the right to it was not an issuable fact but contestable only on affidavits, and if not granted before judgment rendered, an execution against the person could not issue. (Wood v. Henry, 40 N.Y. 124.)
In 1886 section 550 of the Code was amended among other respects by striking out the provision relating to actions for money received in a fiduciary capacity and misapplied, and *Page 519 section 549 was amended by its incorporation into subdivision 2, but with an important change in its phraseology in that it required that an allegation to that effect should be made in the complaint and proved on the trial — if made and not proved, plaintiff to fail of recovery.
The effect of this amendment was not to change the cause of action from contract to one of tort, but to change the remedy. As we have observed prior to such amendment the right to issue an execution against the person in actions of this character, was made to depend on an application by the plaintiff for an order of arrest based on appropriate affidavits before the entry of judgment. The defendant had a right to contest such application by means of opposing affidavits, and the judge determined from such papers and the pleadings whether a proper case was presented for an order of arrest. If granted, and not subsequently vacated, execution issued against the person in the event of plaintiff's recovery. The jury were thus prevented from considering whether the circumstances entitled a plaintiff to a remedy against the person as well as the property of the defendant. Their duty was fully performed when they had determined what sum, if any, was due to the plaintiff. The court having already decided if applied to, and on other papers in part, whether the plaintiff was entitled to the additional remedy which the issuing of an order of arrest gave.
It may tend to show the purpose of the legislature if in this connection we briefly examine chapter 672 of the Laws of 1886. The first and second sections amend sections 549 and 550 of the Code of Civil Procedure, in the respects already sufficiently alluded to for our present purpose. Section 3 amends section 551 of the Code, so as to conform the practice in granting and serving orders of arrest to sections 549 and 550, as by such act amended.
Section 4 amends section 558 of the Code, so as to provide, among other things, that when the order of arrest is applied for, after the filing or service of the complaint, the court may before granting the same, direct the service of an amended *Page 520 complaint, so as to conform to the allegations required in subdivisions two and four of section 549. It may be remarked in this connection that only subdivisions 2 and 4 of section 549 provide for allegations in the complaint in addition to those requisite to establish a cause of action, and that a judgment may be recovered if they are omitted, but the remedy against the person does not in such case flow from it.
Section 5 amends or substitutes for section 3 of the Code, a section limiting the term of imprisonment in jail under an execution against the person; limiting the period which a person may be imprisoned within the jail liberties of any jail; prohibiting further imprisonment in the same action, and making it the duty of the sheriff to discharge a person imprisoned, at the expiration of the periods provided for, without any further application therefor.
Section 6 amends section 572 of the Code so as to provide for the discharge of the debtor from custody in certain cases of unwarrantable delays, the plain object of the section being to relieve the debtor from continued and extended imprisonment, whether by virtue of separate mandates in the same or different actions.
Section 7 provides that the act shall apply to all imprisoned debtors under any mandate against the person heretofore issued, and commands the sheriffs of the several counties to discharge within five days from the passage of the act all persons entitled to discharge by the provisions of section 3 of the Code of Civil Procedure as amended.
It is apparent, therefore, that the purpose of the legislature in amending the several sections of the Code of Civil Procedure in the manner provided by chapter 672 of the Laws of 1886 was in the direction of personal liberty.
Before the amendment, a person who misapplied moneys obtained in a fiduciary capacity was subject to arrest on an order granted before judgment and to be taken in execution against the person after.
The creditor still has the same remedy, but the procedure is changed. Formerly he only had to state in his pleadings a *Page 521 plain and concise statement of the facts, and on trial need prove nothing more. Whether he was entitled to an order of arrest carrying with it a right to an execution against the person of his debtor depended on the affidavits presented to the judge and his view of their sufficiency.
But now as I interpret the section under consideration in the light of the apparent intent of the legislature, as manifested by the other provisions of the act creating the order, an order of arrest cannot be obtained, unless the complaint alleges, in addition to a plain statement of the facts, that the money misapplied was obtained in a fiduciary capacity.
The plaintiff makes the allegation at his peril, for if he fails to prove it to the satisfaction of the jury, judgment must go against him in a case, when but for such allegation the jury would be required to find an indebtedness to the plaintiff, on the part of the defendant.
The object of the amendment seems to have been to give a defendant charged with misappropriating moneys received in a fiduciary capacity. 1. Specific notice that the plaintiff seeks a remedy against his person. 2. The benefit of an ordinary trial by jury, with the privilege of adducing oral testimony, and of cross-examination of adverse witnesses upon the facts, involving the right of arrest. 3. Such advantage as may accrue because of the plaintiff's knowledge that if he fail to satisfy the jury, that the facts entitle him to a remedy against the person of the defendant, judgment for costs will be rendered against the plaintiff.
It is not contended by those differing with the construction heretofore given by the courts to section 549, that it was not framed with a view to insure to a defendant apprisal by the complaint that a remedy against his person is sought. But it is urged that he may be said to be so apprised if the allegations of the complaint warrant the conclusion which the Code says must be alleged. Some of the reasons have already been given which have led me to the conclusion that the legislature intended to, and did provide for an allegation so specific as to give the defendant ample notice that he must be prepared to contest *Page 522 with the plaintiff, the facts involving the right of arrest as well as the alleged indebtedness, and it may not be amiss to call attention to the argument, which the situation of this case presents, in support of the wisdom of the legislature in providing for an allegation which insures to the defendant actual notice that a remedy beyond a judgment for money is sought
It is now about to be held, in effect, if not in terms, that the causes of action averred in the complaint are not in tort, but ex contractu, because for money had and received in a fiduciary capacity (Segelken v. Mayer, 94 N.Y. 474-484), and that the complaint being susceptible of such a construction, the defendant must be deemed to have been notified by it that a remedy against his person was sought. Yet, in this very case, the defendant pleaded a counter-claim to which the plaintiff interposed a demurrer in which he assigned, among other grounds of demurrer, "that it appears on the face of said counter-claim that it is not of the character specified in section 501 of the Code of Civil Procedure, in that it alleges facts constituting a cause of action arising on contract, while the cause of action arising out of the facts alleged in the complaint is in tort and not on contract."
After argument, the demurrer was sustained and judgment thereon rendered in favor of the plaintiff.
Now, can it be that, a complaint which the plaintiff by his demurrer asserted was in tort, an assertion which the court after argument made sustained by its judgment, may be said to have apprised the defendant that on the trial he should be prepared to meet the charge that a recovery was claimed for money received in a fiduciary capacity? It seems to me not, and that it was to provide against just such cases that induced the legislature in part at least to require that in addition to the statement of facts, there should be a specific allegation which should with certainty inform a defendant of the extent of the remedy sought against him.
Other instances might be cited tending to show that the evident purpose of the legislature will not be effectuated, if the section of the Code under consideration be so construed as *Page 523 to render it unnecessary to aver in the complaint the allegation declared to be essential in case a remedy against the person is sought.
But it will serve no useful purpose to multiply them. The legislature clearly intended to take a further step in the direction of personal liberty; and to that end deemed it essential that a defendant should have explicit notice that other than a money judgment is claimed; that he should have the right to contest the charge of breach of trust before a jury, and to prevent the charge from being lightly made and on insufficient grounds, it imposed as a penalty for failure to substantiate the allegations required to be pleaded that the plaintiff should fail of recovery.
The judgment should be affirmed.