Catlin v. Adirondack Co.
New York Supreme Court
Appeal from an order of tbe Special Term vacating an execution for costs, issued against tbe person of tbe plaintiff. No order of arrest bad been issued in tbe action. Tbe defendant having prevailed, an execution against tbe plaintiff’s person was issued under section 1487, subd. 1 of tbe Code of Civil Procedure, tbe defendant claiming that if it bad been a natural person “ tbe nature of tbe action ” would bave entitled tbe plaintiff to an execution against tbe person.
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Appeal from an order of tbe Special Term vacating an execution for costs, issued against tbe person of tbe plaintiff. No order of arrest bad been issued in tbe action. Tbe defendant having prevailed, an execution against tbe plaintiff’s person was issued under section 1487, subd. 1 of tbe Code of Civil Procedure, tbe defendant claiming that if it bad been a natural person “ tbe nature of tbe action ” would bave entitled tbe plaintiff to an execution against tbe person. As tbe question depends upon tbe complaint it is given in extenso, as follows: The plaintiffs in tbe above entitled action…
1Opinion of the Court
Barrett, J.:
The gist of this action is misfeasance, to wit: the breach of the carrier’s legal duty. It is grounded in tort. (Cregin v. Brook*21lyn Crosstown R. R. Co., 75 N. Y., 192.) Some confusion has crept into the cases, growing out of the old forms of action. For instance, it ivas optional under the old system to bring assumpsit or case. The former was nominally ex contractu, the latter ex delicto. But the substance was the same. True, the pleader might aver an express promise and its breach.
Then the action was ex contractu in substance as well as form, for the promise was the gist.
He could…
2Cases cited4 opinions
- Carroll v. . Staten Island R.R. Co.New York Court of Appeals · 1874
- Cregin v. . Brooklyn Crosstown Railroad Co.New York Court of Appeals · 1878
- Bank of Orange v. BrownNew York Supreme Court · 1829
- Atlantic Mutual Insurance v. McLoonNew York Supreme Court · 1866