The complaint alleges that the plaintiff sold his interest in the co-partnership composed of himself and defendant, to the latter, for the sum of $1,811.50, which sum together with $270, for the services of plaintiff’s minor son, made $2,081.50, for which the defendant was justly indebted to the plaintiff, and judgment is demanded for this sum.
The plaintiff prays an accounting of the partnership matters, but if the allegations stated, as to the dissolution and sale of his interest were true, no accounting of the partnership dealings was necessary—that part of the prayer was, therefore, unnecessary, and wholly unimportant.
The cause of action was for money, and was recoverable in an action at law.
The cause of action was one for which the defendant could not be arrested and imprisoned, on an execution after judgment, under § 179 of the Code, unless an order of arrest had been obtained.
The ground relied on for an order of arrest was, the contemplated removal of his property, with intent to defraud his creditors..
The officer who granted the order, decided that the contemplated removal with the imputed intent was established, and therefore, granted the order.
The defendant made two attempts before trial, before the referee, to vacate this order, without success, and he now applies to have it vacated on the ground that the recovery before the referee was for a different cause of action from that alleged in the complaint, and according to the case of Smith agt. Knapp, (30 N. Y., 581,) such a motion may be made, and the order vacated on that ground.
The complaint in that case, contained five causes of action, upon only one of which could the defendant be arrested and imprisoned on a ca. sa. on the judgment.
*327An order of arrest was obtained I infer, on the gronud of the fraud and not by reason of any matter connected with the other causes of action.
The recovery was on one of the causes of action for which the defendant could not be imprisioned.
The result was, the plaintiff imprisoned the defendant on one cause of action, while his judgment was for an essentially different one, such an arrest was held to be illegal.
In this case, the referee finds the defendant indebted to the plaintiff for the purchase price of his interest in part of the partnership property, and for money collected from the assets of the firm after dissolution, and to one half of which plaintiff was entitled.
Technically the cause of action set out in the complaint, is not the same as that on which the referee awarded judgment, but in a more enlarged sense, they are the same. The claim was for money due and owing from the defendant to the plaintiff. If there was a debt really due, and the defendant was intending to remove his propery with intent to defraud his creditors, the same injury would be done whether the debt arose out of the one claim or the other.
It was a question for the referee to decide whether, when the plaintiff failed to prove a sale of his interest in the joint property to defendant, he would take an account and ascertain whether money was actually due the plaintiff on a settlement of the partnership account. If he has erred in that, the error must be corrected on appeal—the complaint, if it does not authorize the proof, will be amended, unless the proof is of a cause of action essentially different from that stated in the complaint.
The defendant’s counsel insists that there can be no arrest where the cause of action is an equitable, as distinguished from a legal one.
However true, this may be, as to certain actions that are of equitable cognizance, yet, an action to recover money, it matters not whether the remedy is in equity or at law, the *328defendant may be arrested provided the facts stated in the complaint as sworn to in the affidavit, bring the case within one of the subdivisions of § 179 of the Code.
I do not think that the cause of action for which the referee has awarded judgment, is different from that stated in the complaint, so as to bring the case within the principle of Smith agt. Knapp, supra.
The intent to remove and to defraud established by the affidavit, if carried out, would defeat the plaintiff in the recovery of an honest debt, which the referee has held to be covered by the complaint, or must be deemed to have allowed an' amendment of it, so as to conform it to the proof.
It is said by the defendant’s counsel, that by the finding of the referee there was no settlement of the partnership dealings and no promise to pay a balance struck, and hence, no action at law could be maintained—but if an action was commenced in equity for the recovery of money, and an accounting is required in order to arrive at the amount due, and it is established by affidavit that the defendant intends to remove his property from the state, with intent to defraud his creditors—an order of arrest may issue—the form of the action does affect the right of arrest.
The motion must, therefore, be denied, with $10 costs.
The general term affirmed the judgment; and as there was no written opinion delivered, it is supposed that the opinion of Judge Mullin at special term, was adopted as the opinion of the court.