Haigh v. Martin

The action is brought to recover the sum of twenty dollars deposited by the plaintiff with the defendant as security for the payment of dental work which the latter agreed to perform for the former. *410The plaintiff, it is alleged, demanded a return of the money on - the neglect and refusal of the defendant to perform the services agreed upon; but defendant has refused to return the money and has wrongfully kept and converted the same. There was no answer or. appearance at the trial on behalf of the defendant. An inquest was taken, and. all the allegations of the complaint were proven excepting the fact that the defendant was authorized and licensed to practice his profession. Judgment was rendered in favor of the plaintiff, and an appeal has been taken to this court because of the refusal of the magistrate to insert in the transcript the words “ defendant liable to arrest and imprisonment on execution.”

By subdivision 2 of section 2895 of the Code of Civil Procedure it is provided that an order of arrest shall be granted where the action is brought, among other things, to recover damages for an injury to property, including the wrongful detention or conversion of personal propérty^ misconduct or neglect in a professional employment, fraud or deceit. We think the defendant was within the • terms of this section, notwithstanding the failure on the part of the plaintiff to prove that he was practicing his profession under the protection of a proper license. The action is founded upon fraud. By section 8018 of the Code the section quoted above is made applicable to the judgment in Justices’ Court.

The judgment appealed from should be modified by inserting the words 11 defendant liable to an execution against his person,” and as so modified affirmed, with costs.

All concurred, except Goodrich, P. J., who read for affirmance.

I cannot agree with the result reached in the opinion of my associates.

The complaint alleges that the defendant is a- “ dentist, duly - authorized and licensed to practice in the State of New York that in November, 1900, the plaintiff and defendant entered into an agreement whereby the defendant, in consideration of a sum not to exceed fifty dollars, to be paid him by the plaintiff, agreed to perform certain- professional services on the plaintiff’s teeth and provide the necessary materials therefor; that he demanded and received of the plaintiff' ,an advance payment of twenty dollars on account of *411said services to be rendered and material to be furnished, and thereafter refused to perform the services and fraudulently retains-the twenty dollars.

The defendant did not appear on the return of the summons, and an inquest was taken, evidence being given fully proving all the allegations of the complaint, except that the defendant was a licensed dentist. Hence it was not shown that the action was within section 2895, subdivision' 2, of the Code of Civil Procedure.

For this reason I think the justice was justified in refusing the plaintiff’s request to insert in the transcript of the judgment the words, “ defendant liable to' arrest and imprisonment on execution,” and that the judgment should be affirmed.

Judgment of the Municipal Court modified by inserting the words, “ defendant liable to an execution against his person,” and as so modified affirmed, with costs.