On the 31st day of October, 1895, Knapp, the plaintiff and respondent, brought an action in Justice’s Court in Ontario county, before A. Dunham, Esq., a justice of the peace, and lodged with the justice of the peace a written complaint containing the following words: “That on or about the 19th day of June, 1895, the said defendant, for value received, made, executed and delivered to the plaintiff an assignment and transfer of certain moneys that he was to receive from the Lehigh Valley Railroad Company, and thereby agreed to become the agent of the plaintiff for the collection of the. said moneys, and immediately upon the collection of the same, on or about the 18th day of July, 1895, to pay the same over to the said plaintiff, free of all charge or expense. That on or about the 18th day of July, 1895, the said defendant collected, and received the sum of $35.00 from the Lehigh Valley Railroad Company, which *85was tiie money of this. plaintiff. That this plaintiff immediately thereafter, and frequently since, has demanded the said moneys of the said defendant, and he has neglected and refused to deliver the same to this plaintiff. That the said defendant has unlawfully and wrongfully converted the said sum of $35.00, the property of this plaintiff, to his own us'e.”
The summons was returnable on the 11th" of November, 1895, and on that day the plaintiff appeared. The defendant did not appear. The plaintiff submitted the case “ on his verified complaint,” after proof that the interest amounted to seventy cents. The justice thereupon rendered a judgment for thirty-five dollars and seventy cents damages, and one dollar and ninety cents costs, and on that day issued an execution against the defendant, and delivered the same to the plaintiff, which was returned unsatisfied December 30, 1895.
In the affidavit of Mr. Griffith it is stated that the plaintiff was present before the justice when the judgment was rendered “ and demanded the issuing of a body execution, and took the same himself to a constable of the said town of Manchester.”
*86An appeal was taken from the justice’s judgment to the County Court of Ontario county, and the judgment was reversed by the County Court, and thereupon á judgment was entered in favor .of the defendant for .thirty-five dollars and twenty-five cents costs in the Ontario county clerk’s office.
On the 23d of November, 1896-, an execution was issued against the property of Knapp, the plaintiff, and delivered to the sheriff of the county of Ontario, and by him returned unsatisfied on" the 16th of December, 18.96, and on the 18th of December, 1896, an execution against tlie person of Knapp was issued to the sheriff of Ontario-county, and Knapp “ was duly arrested and taken into custody thereunder on the 29th -day of December, 1896, by Lyman EL Aldrich, a deputy sheriff of Ontario county.”
Whether the County Court properly reversed the justice’s judgment is not a question to be considered on this appeal.
The gravamen of "the plaintiff’s complaint seems to be for a conversion of a sum of money, which the plaintiff alleges he had demanded of the defendant, and after such allegation made in the complaint, the plaintiff further alleges, viz.: “ That the said defendant *87has unlawfully and wrongfully converted the said sum of $35.00, the property of this plaintiff, to his own use.”
Upon recovery by the plaintiff under such a complaint, he was entitled to issue a body execution. Indeed, such seems to have been the construction of his complaint by him when he held a judgment against the defendant.
In subdivision 2 of section 2895 of the Code, which provides for an order of arrest, it is specified that where the recovery is for “ an injury to property, including the wrongful taking, detention or conversion of personal property,” an order of arrest may be granted.
In Babcock v. Smith (19 N. Y. Supp. 817) it was held that the section from which the quotation has been made, that where the cause of action is for the wrongful conversion of personal property, the same is one of the sections specified in subdivision 2, section 2895 of the Code of Civil Procedure.
Under a complaint somewhat similar to the one before us, it was held in Farrelly v. Hubbard (148 N. Y. 592) that it authorized the issuing of a body execution. In the course of the opinion delivered it was stated : “ As already stated, the action in Justice’s Court was *88for 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 Mm was, as matter of law, conversion.”
In the case in hand it was the duty of the defendant, upon receiving the money mentioned in the complaint, “ 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 case from which the quotation has just been made is authority for issuing a body execution in the case in hand.
Carrigan v. Washburn (14 Civ. Proc. Rep. 350), cited by the respondent, is not applicable to the case in hand: That was a case where the plaintiff’s right to arrest the defendant did not depend upon the nature of the action, but upon extraneous grounds..
Nor does Roeber v. Dawson (14 Civ. Proc. Rep. 354) aid the contention of the respondent. In that case it is said: “ The plaintiff in this case'could not recover without proof beyond the complaint allegations.”
In Longuemare v. Nichols (7 N. Y. Supp. 672) it was held that “ where a plaintiff is defeated, and defendant seeks to pursue him on a judgment, for costs, plaintiff becomes a defendant, within Code Civil Procedure, N. Y. section 572.”
Whenever a plaintiff brings an action in tort and seeks to recover in tort, if he is defeated and the defendant recovers costs, he .is entitled to have a body execution. (Philbrook v. Kellogg, 21 Hun, 238.)
The doctrine which we have already adverted to was approved in Parker v. Spear (62 How. Pr. 394), and it was said that the principle aptly illustrates the truth of the old proverb that “ those who take the sword should perish by the sword.”
It seems from the affidavit that the plaintiff was willing to obtain a body execution after he had obtained judgment against the defendant while it remained un-reversed.
The foregoing views lead to the conclusion that the Special Term fell into an error when it set aside the body execution issued against the plaintiff.
. We think the order should be reversed, and the defendant should be allowed to pursue his remedy against the plaintiff to recover the costs of the action.
*89Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.