#### THE ÆTNA INSURANCE COMPANY, Respondent, *v.*JAMES M. SHULER, Appellant.

*Execution against the person*— in *what ease it may issue, when no order of a/rrest*, *has been previously*granted— *Code of Oivil Proeedu/re, sees.*549, 550, 1487.

An execution can be issued against the person, without a previous order, of arrest, only in a case where the complaint must and does state a cause of action covered by section 549 of the Code of Oivil Procedure, and not in a case in which, while the complaint does show a cause for an arrest, such allegations are not necessary to the cause of action alleged, although the plaintiff would be entitled to an order of arrest upon showing, by affidavits, the facts extrinsic to the cause of action, as required by section 550.

Appeal from an order made at a Special Term, denying a motion to vacate an execution issued against the person of the defendant.

*Z. S. Westbrook,*for the appellant.

*A. Pard,*for the respondent.

Westbrook, J.:

The appellant appeals to this court from an order of - the Special Term, denying a motion to vacate an execution issued against his person, under which he was held in custody by the sheriff of Montgomery county.

*339There had been no order of arrest before judgment, and if the execution can be upheld, it must be upon the ground that it issued to enforce a judgment obtained in an action in which, to justify its issue, no previous order of arrest was necessary.

The cause of action stated in the complaint was, that the defendant, as the agent of the plaintiff at Amsterdam, N. Y., had by its authority and as its agent, during the month of January, 1881, received and collected for it, as premiums upon policies of insurance, the sum of seventy-three dollars and twenty-four cents, which he had failed to pay over to the plaintiff, and had appropriated to his own use.

Section 1487 of the Code of Civil Procedure provides that an execution against the person may issue “ 1. Where the plaintiff’s right to arrest the defendant depends upon the nature of the action. 2. In any other ease, where an order of arrest has been granted and exeeuted'in the action, and, if it was executed against the judgment-debtor, where it has not been vacated.”

Section 549 of the Code provides for those cases in wliich an order of arrest may.be made depending upon the cause of action as stated in the complaint. (See section and Throop’s note thereto.)

Among the causes of action therein specified is one for “ the wrongful taking, detention or conversion of personal property.” Section 550 of the Code specifies the cases in which the order of arrest issues upon facts not necessary to be averred in the complaint. (See that section and Mr. Throop’s note thereto.)

Among the cases therein enumerated is “an action-to recover for money received * * * by an officer or agent of a corporation * * * in the course of, his employment.”

The execution was sustained at Special Term upon the ground that the cause of action stated in the complaint was one in trover, and therefore embraced in section 549 of the Code. This was a mistake. *(Wood*v. *Henry,*40 N. Y., 124; *Conaughty*v. *Nichols,*42 id., 83; *Greenhree*v. Rosenstock. 61 id., *583;*and many others.) It was simply an action covered by the exact language of section 550, to wit, one action to recover moneys received by an agent of a corporation in the regular course of his employment. The fact that the plaintiff asked for a judgment as for conversion of the money, did not alter nor change the facts. It was still not *340an action of trover, wbicb. is only maintainable wben tbe party suing is wrongfully deprived of the possession of tbe particular chattel, wbicb is the subject of tbe controversy. When a person occupies towards a corporation, wbicb employs bim, tbe position which tbe present defendant is alleged to bave sustained towards tbe plaintiff, it is not bis duty to return the identical money collected, but to remit tbe same sum either according to specific instructions of tbe principal, or in tbe usual mode of making remittances. If, therefore, this action bad been tried according to tbe rules governing an action of trover, it would bave failed, because tbe action did not depend upon the fact that the agent had not remitted tbe identical money collected, and it could bave been defeated by showing that tbe same amount in money bad been tendered and refused. It is true that tbe plaintiff has averred in bis complaint facts, which if true, would bave entitled bim to an order of arrest before judgment, and an execution .against tbe person to enforce such judgment after its recovery, but all these facts were not necessarily a part of the complaint, as tbe cases referred to above decide. If that pleading bad simply alleged the reception of money by tbe defendant for tbe use of tbe plaintiff, which be bad failed to pay, tbe cause of action would bave been perfect, and his right to the order of arrest clear, upon proof of the facts by affidavit attending its collection. If tbe provisions of section 1487 of ■ tbe Coffe are borne in mind this case presents no difficulty. The execution against tbe person without a previous order of arrest, issues only in a case in wbicb tbe complaint *must*and does state a cause of action covered by section 549, and not in a case in wbicb a plaintiff *may*so complain as to show no cause for an arrest, and yet be entitled to one upon showing by affidavit facts extrinsic to tbe complaint as required by section 550.

As then the complaint in this action, whilst averring facts wbicb if true entitled tbe plaintiff to an order of arrest, did not necessarily contain them, and therefore tbe *“*right to arrest tbe defendant ” did not depend *“*upon the nature of tbe action, ” but upon facts wbicb could have been shown by affidavit, and were not necessary to be stated in tbe complaint; and also because such facts as averred establish no cause of action in trover, it follows, that tbe execution against ,tbe ■ person of tbe defendant, wbicb *341issued without a previous order of arrest, must be set aside, with ten dollars costs, and the order of the Special Term, which refused that relief must be reversed, with ten dollars costs and lawful disbursements.

Learned, P. J., concurred; Bocees, Jt, not acting.

Order reversed, with ten dollars costs and printing disbursements, and motion granted, with ten dollars costs.