The action is brought to recover the sum of twenty dollars deposited by the plaintiff with the defendant as security for the payment of dental work which the latter agreed to perform for the former. *410The plaintiff, it is alleged, demanded a return of the money on - the neglect and refusal of the defendant to perform the services agreed upon; but defendant has refused to return the money and has wrongfully kept and converted the same. There was no answer or. appearance at the trial on behalf of the defendant. An inquest was taken, and. all the allegations of the complaint were proven excepting the fact that the defendant was authorized and licensed to practice his profession. Judgment was rendered in favor of the plaintiff, and an appeal has been taken to this court because of the refusal of the magistrate to insert in the transcript the words “ defendant liable to arrest and imprisonment on execution.”
By subdivision 2 of section 2895 of the Code of Civil Procedure it is provided that an order of arrest shall be granted where the action is brought, among other things, to recover damages for an injury to property, including the wrongful detention or conversion of personal propérty^ misconduct or neglect in a professional employment, fraud or deceit. We think the defendant was within the • terms of this section, notwithstanding the failure on the part of the plaintiff to prove that he was practicing his profession under the protection of a proper license. The action is founded upon fraud. By section 8018 of the Code the section quoted above is made applicable to the judgment in Justices’ Court.
The judgment appealed from should be modified by inserting the words 11 defendant liable to an execution against his person,” and as so modified affirmed, with costs.
All concurred, except Goodrich, P. J., who read for affirmance.