Barney Cohen Realty Co. v. Cagino

Resettled order vacating a body execution reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The gravamen of this action is fraud; the complaint alleges false representations to induce plaintiff to part with its property, and the trial court has found that there was such fraud, and, as a part of the relief, plaintiff was given a money judgment because respondent is unable to reeonvey all of the property obtained by him by means of such false representations. In our opinion, plaintiff is entitled, under subdivisions 6 and 7 of section 826 of the Civil Practice Act, to a body execution. (See Smith v. Duffy, 37 Hun, 506, and Finkemaur v. Dempsey, 8 Civ. Proc. Rep. 418.) Young, Scudder and Tompkins, JJ., concur; Lazansky, P. J., and Kapper, J., dissent and vote to affirm on the ground that, the action being in equity, an order of arrest could not have been obtained in the first instance, nor can a body execution follow upon the judgment.