In re Short , 54 N.Y.S. 1075 ( 1898 )

LANDON, J.

The order appealed from must be ¿firmed, because the action was brought in a justice’s court to recover chattels, with damages for their detention. No order of arrest was issued, and therefore, if plaintiff had recovered, he would not have been entitled to an execution against the person of defendant upon account of the chattels (Code Civ. Proc. § 3026); and he was not entitled to an order of arrest under either subdivision 1 or 2 of section 2895, and therefore not entitled to an execution against the person (section 3026), upon account of damages for the wrongful taking and detention of the chattels, because of the exception stated in the section last cited: “But this subdivision does not apply to a claim for damages in an •action to recover a chattel.” Besides, unless the execution can issue upon both demands it can issue upon neither. Bowen v. True, 53 N. Y. 640.

Order affirmed, with $10 costs and disbursements. All concur.