The only question presented on the appeal in this case, is whether an execution, issued against the persons of the defendants, was authorized under the provisions of the Code.
The action was commenced, by the service of the summons and complaint therein, on each of the defendants personally.
The complaint, after alleging that the plaintiffs were copartners, in the business of manufacturing cheese, at Lanesborough, in Massachusetts, and "that the defendants were copartners, carrying on the business of commission merchants, and produce and cheese brokers, as such at the city of New York," avers in substance, that the plaintiffs, on or about the first day of January, 1868, employed the defendants, as such copartners, to sell a quantity of cheese, belonging to them, on commission, and delivered it to them, "to be sold at the highest cash prices, and for a reasonable commission, for and on behalf of these plaintiffs, and that said defendants, as such copartners, thereupon undertook and agreed to sell such cheese for cash, at its highest market price, and immediately after such sale, to render an account thereof to these plaintiffs, and to pay over to said plaintiffs the proceeds of said sale, after deducting a reasonable sum, as commission or compensation for defendants' services, in said transaction;" that the defendants, on or before the ninth day of the said January, *Page 130 sold said cheese and received therefor the sum of $1,855.46; that their just charges, for commissions and expenses, in and about such sale, including the freight thereon, were $186 and no more; and that the sum of $1,669.34, being the balance of the money so received, after deducting said charges, became payable to the plaintiffs, by the defendants, on the said ninth day of January, 1868, but that no part of the same had been paid.
The plaintiffs, upon those facts, demanded judgment against the defendants, for the said last mentioned sum, with interest and costs.
The defendants failed to answer the complaint, and judgment was entered against them, by default, for the amount claimed, with costs.
After an execution, against the property of the defendants, had been returned, unsatisfied, an execution against their persons was issued to the county of New York, without any previous order authorizing an arrest, which, on that ground, was set aside by an order of Special Term, subsequently affirmed at General Term.
It then becomes necessary to inquire whether such order of arrest was a pre-requisite to the issuing of that execution.
It is provided, by section 179 of the Code, that a defendant may, among other cases, be arrested "in an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled or fraudulently misapplied by a public officer, or by an attorney, solicitor or counselor, or by an officer or agent of a corporation or banking association, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment" (subdivision 2d), and it is required by section 180, that an order for such arrest must be obtained from a judge of the court in which the action is brought, or from a county judge, which, by section 181, "may be made where it shall appear to the judge, by the affidavit of the plaintiff, or of any *Page 131 other person, that a sufficient cause of action exists and that the case is one of those mentioned in section 179."
Section 288, then provides, that "if the action be one in which the defendant might have been arrested, as provided in section 179, and section 181, an execution against the judgment debtor may be issued to any county within the jurisdiction of the court, after the return of an execution against his property, unsatisfied, in whole, or in part. But, no execution shall issue against the person of a judgment debtor, unless an order of arrest has been served, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by section 179."
Those facts, I shall assume, must be such as are material in stating the cause of action, under the system of pleading prescribed by the Code.
That requires, by section 142, that the complaint shall contain (in addition to other matters immaterial to the present inquiry), "a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition."
All the facts set forth in the complaint (except the nature and place of business of the parties, and they will be disregarded as immaterial) were properly and necessarily stated, as constituting the plaintiffs' cause of action. They show the origin, nature, and extent of the plaintiffs' demand, and none of them, with the exception referred to, are immaterial, or irrelevant. From these, it appears that the defendants had, as the factors, or persons otherwise acting as agents of the plaintiffs, or in a fiduciary capacity, received, as the avails of certain property belonging to them, and sold by the defendants, the money mentioned in the complaint, and which they, in violation of their duty, and in breach of their trust, growing out of the relation existing between the parties, had neglected to account for or pay. These facts show a cause of arrest, within subdivision 2, of section 179, above recited.
It may be proper to notice a point of the defendants, that the judgment is void on its face, and may be attacked collaterally, on the ground that the affidavit of verification to *Page 132 the complaint was not properly administered, and that it was entered without any proof or assessment of damages. It is sufficient to say that no such ground was taken in the court below.
The motion there was made, to set aside the execution, and to discharge the defendants from imprisonment. It was limited to that object, and the notice of motion states the judgment to be one of the papers on which it was founded. The validity of the judgment was, therefore, assumed. In any event, the entry of the judgment, without any other proof than the affidavit of verification to the complaint, was an irregularity, merely, and the judgment was not void.
The objection, therefore, is not available now. It follows, from the views above expressed, that the execution was properly issued, without a previous order of arrest, and that the order of Special Term, setting it aside, and that of the General Term, were each erroneous.
They must, therefore, be reversed, and an order must be entered, denying the original motion, with $10 costs of the motion, and on each of the appeals.
HUNT, Ch. J., GROVER, MASON, MURRAY, and DANIELS, JJ., were for affirmance on the grounds stated in WOODRUFF'S opinion.
DANIELS, J., also thought that the plaintiffs, having entered judgment without application to the court, must be deemed to have waived any claim except for the recovery of money due upon a simple contract debt.
JAMES, J., concurred with LOTT, J., for reversal. He thought the plaintiffs must necessarily, upon a trial under the complaint, have proved the fiduciary relation, in order to recover.
Order affirmed. *Page 133