Ginochio v. Figari , 2 Abb. Pr. 185 ( 1855 )

INGRAHAM, F. J.

It is unnecessary to decide whether the Marine Court had the power to issue an execution against the person in this action. If that court possessed such power, the discharge by the court of the defendant upon the execution without the plaintiff’s consent, did not deprive him of his right to enforce payment of his judgment by all the remedies provided by the law. Whether, therefore, the first execution against the body, issued from the Marine Court, was valid or not, the discharge of the defendant from arrest did not prevent the plaintiff from issuing a second execution when such discharge was without his consent. (4 Cow., 553; Humphrey v. Cumming, 5 Wend., 60). This was expressly held in Wesson v. Chamberlain (3 Comst., 331).

After the transcript of a judgment is filed in the county clerk’s office, the judgment is then to be deemed a judgment of this court; it is to have the same effect as a lien, and is to be enforced in the same manner. (Code, § 68). A judgment of the Common Pleas is enforced by an execution against property, and where the cause of action is one within the provisions of section 179 of the Code, by an execution against the person. By that section (subd. 2), in an action for moneys received by any person in a fiduciary capacity, if the same are misapplied fraudulently, the defendant is subject to arrest, and by section 288, if he might have been arrested under section 179, an execution against his body may be issued.

The rules applicable to executions as they existed before the Code, are continued in force by section 291. It never was necessary to obtain an order for the arrest of a defendant on execution. Nor is that rule changed by anything in the Code. The plaintiff issuing the process is responsible, and if it is unreasonably issued the defendant is relieved on motion, and has redress by an action.

The order at special term was proper, and should be affirmed.