Kropf v. Joseph Electric Co.

Where a complaint is predicated on causes of action in contract and tort, not all of which authorize the granting of a body execution, such execution may not issue unless it is clear that plaintiff’s recovery was based on a cause of action which authorizes a body execution (Boyle v. Semenoff, 201 App. Div. 426). Upon the verdict here, plaintiff lost his right to a body execution and there is nothing that plaintiff could adduce before another court in addition to the papers before the court on the application here under review which would entitle him to a body execution. Accordingly the motion should have been denied on the merits and it was error to deny the application “ without prejudice ”.

*272The order should be modified by deleting therefrom the words “ without prejudice ” and as modified affirmed, with $10 costs and disbursements.

Hecht, Aurelio and Tilzer, JJ., concur.

Order modified, etc.