I cannot agree with the result reached in the opinion of my associates.
The complaint alleges that the defendant is a- “ dentist, duly - authorized and licensed to practice in the State of New York that in November, 1900, the plaintiff and defendant entered into an agreement whereby the defendant, in consideration of a sum not to exceed fifty dollars, to be paid him by the plaintiff, agreed to perform certain- professional services on the plaintiff’s teeth and provide the necessary materials therefor; that he demanded and received of the plaintiff' ,an advance payment of twenty dollars on account of *411said services to be rendered and material to be furnished, and thereafter refused to perform the services and fraudulently retains-the twenty dollars.
The defendant did not appear on the return of the summons, and an inquest was taken, evidence being given fully proving all the allegations of the complaint, except that the defendant was a licensed dentist. Hence it was not shown that the action was within section 2895, subdivision' 2, of the Code of Civil Procedure.
For this reason I think the justice was justified in refusing the plaintiff’s request to insert in the transcript of the judgment the words, “ defendant liable to' arrest and imprisonment on execution,” and that the judgment should be affirmed.
Judgment of the Municipal Court modified by inserting the words, “ defendant liable to an execution against his person,” and as so modified affirmed, with costs.