The gist of this action is misfeasance, to wit: the breach of the carrier’s legal duty. It is grounded in tort. (Cregin v. Brook*21lyn Crosstown R. R. Co., 75 N. Y., 192.) Some confusion has crept into the cases, growing out of the old forms of action. For instance, it ivas optional under the old system to bring assumpsit or case. The former was nominally ex contractu, the latter ex delicto. But the substance was the same. True, the pleader might aver an express promise and its breach.
Then the action was ex contractu in substance as well as form, for the promise was the gist.
He could also maintain assumpsit on the implied promise raised by the duty. There, however, the duty, not the promise, was the gist. The promise was inferred from the duty, not the duty from the promise. The duty was not, in fact, a matter of inference, but was imposed by the custom of the realm, that is, by the common law.
These forms of .action being abolished, we must look to the principle upon which the plaintiff bases his claim. He avers no express promise No contract of any kind is set up. He says the defendants “ undertook and became responsible for the due and safe transport of the trunks,” but that is merely a statenlent of the defendants’ common law liability. (Coggs v. Bernard, 2 Ld. Raym., 909.)
The word “ undertook,” in this connection, cannot be said to import a consideration, nor can it fairly be paraphrased into such an expression as “promised or agreed for a reasonable reward.” Indeed, this is conceded by the respondent, who repeatedly insists that the action rests upon the common law liability of the carrier. His error lies in the deduction that such liability rests upon contract.
The learned justice at Special Term placed his judgment upon the use of the word “undertook,” the fact of the payment of the charges and the failure to allege “ the custom of the realm, the loss by conversion,” etc. But it was never either necessary or proper to aver a general custom (1 Chitty PL, 217), because it is part of the law of the land.
The allegation of conversion was essential, only when there was a count in trover. The payment of the charges is not averred as a distinctive fact, but incidentally as fixing the period when the plaintiff discovered his loss. Note the language: “That after *22said trunks bad been received by tbe plaintiff at tbeir destination aforesaid, and the charges for their transportation duly paid, it was found,” etc.
Upon the whole, we are entirely satisfied that the complaint is founded, not upon contract, but ''upon the breach of the carrier’s legal duty. “A breach of this duty,” said Dallas, Ch. J., in Bretherton v. Wood (3 Brod. & Bing., 54), “ is a breach of the law, and for this breach an action lies founded on the common law, which action wants not the aid of a contract to support it.” (See too the remarles of Anduews, J., quoting and approving the above, in Carroll v. The Staten Island R. R. Co., 58 N. Y., 134 ; also Bank of Orange v. Brown, 3 Wend., 158 ; Atlantic Mutual Ins. Co. v. McLoon, 48 Barb., 27 ; The People v. Willett, 26 id., 81 ; 1 Chitty Pl., 138.)
In The Atlantic Mutual Ins. Co. v. McLoon (ubi supra), the court went so far as to vacate an attachment in such a case, upon the specific ground that it was not an action on contract.'
Even if the question were in doubt, the plaintiff under the case of Miller v. Scherder (2 Comst., 268), would, it seems, have to take the consequences of his ambiguity. “If the plaintiff chooses,” said ShaNKLANd, J., “ to combine in the same action tort and breach of contract, and fails in both, ho should be held to have conferred upon the defendant the most beneficial remedy for recovery of the costs which either cause of action will confer if it had constituted the sole cause.” And again : “ If they desire to escape the perils of imprisonment, in case of defeat, they can and should declare upon contract alone, and without ambiguity, so that the defendants can have the benefit of the exemption conferred by the statute upon them.”
As to the remaining question, we agree with the plaintiffs that there are many torts for which an arrest will not lie. Was the action then for an “injury to property” within section 549 of the New Code ? We think this' question must be answered in the affirmative, on the authority of Duncan v. Katen (6 Hun, 1; affirmed, 64 N. Y., 625). Within this case, the property was the right to have, use and enjoy the thing. Consequently, the entire loss of the thing was an injury to property, viz. : to the right to have, use and enjoy it.
*23There is nothing in the point that the defendant could not actually be arrested, because it is a corporation. It is the nature of the action, not the incident of the person which governs. Nor is the question affected by the character of the summons. (Chambers v. Lewis, 11 Abb. P. R., 210.)
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate denied, with ten dollars costs.
Davis, P. J., concurred. Present, Davis, P. J., and Baeeett, J.Order reversed, with ten dollars costs and disbursements.