Chaucherie v. Popper , 109 N.Y.S. 675 ( 1908 )

Pinelite, J.

This is a motion made by the plaintiff to strike from the judgment entered herein the following clause: “And if an execution against the plaintiff’s property be returned unsatisfied, it is further ordered and adjudged that the defendant have execution against the person of the plaintiff herein.” The plaintiff, a married woman, brought an action to recover damages for slander. The jury found a verdict in favor of the defendant, who thereupon entered a judgment containing the clause above quoted. In Hovey v. Starr, 42 Barb. 435, the court, by Smith, ¿T., say: “ I am not convinced of the correctness of the defendant’s claim that the plaintiff, who is a married woman, is liable, under section 288 of the code, to an execution against the person, upon the judgment which has been recovered against her, in this action, for costs. That section provides that an execution may be issued against the person of the judgment debtor, if the action be one in which the defendant might have heen arrested, as provided in section 179 and section 181 (§ 553 of the Code of Civil Procedure). * * * But I am of opinion that although section 288 was intended to establish the general rule, that in an action in which the defendant shall be liable to be arrested, the plaintiff himself shall be liable to an execution against the person, in case judgment be rendered against him, yet the rule thus established does not embrace those cases in which by other provisions of the code, the same party plaintiff would not be liable to arrest if he were the defendant.” Section 553, Code of Civil Procedure, limits the actions in which a married woman may be arrested to those to recover damages for a willful injury to person, character or property. In Allen v. Becket, 84 N. Y. Supp. 1009, Freedman, J., says: “Ho order of arrest could therefore have been granted herein against the defendant, and under section 1488 no execution can issue against the person of a woman unless an order of arrest has been granted and executed in the action.” “ It was also a rule at common law that where capias lies in process, there, after judgment, capias ad satisfaciendum lies, but in no other cases, unless given by statute.” Hovey v. Stan*, supra, 437, and authorities there cited. “ These rules of the common law, so far as they are applicable to the liability of females to be arrested in civil actions, whether before or after judgment, are pre» served by the provisions of the code above referred to, and as a female cannot be arrested, before judgment, in any action, except for a willful injury, etc., so she cannot be taken in execution after judgment, except in the like case.” Hovey v. Starr, supra. “A married woman cannot be arrested for costs.” Orocker Sheriffs, § 298, and authorities there cited. Ho order of arrest having been granted and executed in the first instance and this action not falling within section 553 of the Code of Civil Procedure, the motion to strike out the above quoted clause from the judgment entered herein is granted, without costs.

Motion granted, without costs.