Opinion
Argued April 20, 1880
Decided June 1, 1880
M.M. Budlong for appellant.
Abram Kling for respondent.
The order for the arrest of John B. Bland, one of the defendants, was granted upon the ground that the defendant had wrongfully taken and converted certain personal property of the plaintiff. The affidavits on which the order was granted were to the effect that the goods had been intrusted to Susan Bland, upon her agreement that she, with the aid of her husband John B. Bland, would sell them for the plaintiff and account for the proceeds; that instead of doing so, they had secreted and taken them away. A case was made out, authorizing the order, and although, upon the motion to vacate it, the facts on which it rested were denied, we should find in such denial no ground for interfering, except for the circumstance next to be considered. After the goods had gone into the possession of the defendant Susan, the plaintiff accepted from her a confession of judgment for the whole value thereof, and after the facts now alleged to show conversion of the property were known to him, he issued an execution for its enforcement, and collected about $400, part thereof. The statement upon which the judgment was entered, described the property now in question, declares that it was "sold and delivered" to the defendant Susan, and that for its value, $3,000, "she is indebted to the plaintiff." It is true that the plaintiff, in opposing this motion, declares that the judgment was taken as security merely. But this is not only in direct opposition to the statement, but the judgment has been, as before observed, enforced by him to some extent, and no proceedings have been taken to amend or correct the statement upon which the judgment was entered. Under these circumstances, I think it should be held conclusive against the plaintiff as to the fact in issue; otherwise a means would be provided by which the statute (Code of Civ. Proc., title 11, §§ 1273, 1274), permitting judgments to be taken by confession, could be easily evaded, and a door opened to the perpetration of the grossest frauds.
The plaintiff, by accepting the judgment and taking out and enforcing his execution, must be deemed to have made his election to treat the goods as the property of the defendant, under a sale by himself ( Morris v. Rexford, 18 N.Y. 557; Bank of Beloit v. Beale, 34 id. 477), and he cannot now change his ground.
The order appealed from should be reversed, and motion to vacate the order of arrest granted, with costs.
All concur.
Ordered accordingly.