Rubin v. Freeman Electric Construction Co.

Appeal from an order of the Supreme Court at Special Term, entered February 4, 1959, in New York County, which granted a motion by plaintifi for an order issuing an execution against the person of the appellant. Memorandum by the Court. Undisputed on this record and in the briefs filed on the appeal is the fact that the cause of action originally sued upon was one under which an order of arrest might have issued (Civ. Prac. Act, § 826). No question has been raised, moreover, that such cause of action fell under subdivisions 3 and 5 of section 826. Of course, if the cause of action fell within 701 subdivisions 6, 7 or 9 of such section, this court might be warranted in denying the application for a body execution, despite the absence of a proper objection (cf. Collins v. Toombs, 271 App. Div. 160). Subdivision 7 of section 826 encompasses a suit for conversion against an “ agent * * * or other 8 * 8 fiduciary”. It is clear that an assignor of accounts receivable, with the duty to collect and pay over, is a fiduciary within the contemplation of this subdivision (Vandeweghe v. Schwartz, 187 App. Div. 219). However, the party against whom execution is sought in this action is not the assignor, but is its officer or agent. One who participates with a fiduciary in a misappropriation of the trust res is responsible therefor in conversion (Hinkle Iron Co. v. Kohn, 229 N. Y. 179). But it does not follow that by so participating he becomes a fiduciary based on an express trust (albeit a constructive trust, in some circumstances, could be imposed on him), at least within the contemplation of subdivision 7 of section 826. (Cf. 3 Scott, Trusts [2d ed.], § 326.4; Restatement, Trusts, § 326.) In this ease, an action having actually been commenced, a body execution on the confession of judgment is proper. (Granville v. Gratzer, 281 App. Div. 514; Steinbock v. Evans, 122 N. Y. 551.) While the remedy of civil arrest is undoubtedly a harsh one, the legislative mandate offers little leeway.