Welch v. Winterburn

The decision of this appeal depends, in our judgment, upon the construction which is to be given to subdivision 2 of section 549 of the Code of Civil Procedure, which provides, so far as it affects this appeal, as follows: “ 2. To recover damages for an injury to property, including the wrongful taking, detention, or conversion of personal property.” It is contended by the appellant that this provision relates only to personal property, and in support of such position relies upon a construction which was given by the Court of Appeals to section 179 of the Code of Procedure, which is reported in Merritt v. Carpenter (3 Keyes, 142), which last mentioned section, so far as it relates to the question we are considering, is as follows: “ Or for injuring or for wrongfully taking, detaining, or converting property.” There is a material difference in the phraseology employed in framing the two sec. *520tions; and we think that change was intentional to avoid the construction given to section 179 in the case referred to. The words, '■'•and injury to property,” standing alone, would include real as well as personal property. The words immediately following, “ including the wrongful taking, detention, or conversion of personal property,” do not have the effect to restrict the meaning of the words, “an injury to property,” but rather, to my mind,, confirm the impression that the intention was to embrace real property; else why are the words, “ personal property,” introduced in the connection they occupy in that portion of section 549 ? The note of the codifiers upon that section seems to confirm the view we have expressed. We perceive no reason why such provision, of the Code should not embrace real property as well as personal, and conclude that such was the intention of the legislature in framing the statute.

■ Upon the merits, the facts are sufficient to sustain the order of arrest; and as the cause of action and ground of arrest are the same, the controversy should be loft to an investigation at a regular trial, where the rights of the parties can be ascertained and adjusted more satisfactorily than upon affidavits in which the statements are conflicting. (Frost v. McCarger, 14 How., 131; Stuyvesant v. Bowran, 34 id., 51; Nelson v. Blanchfield, 54 Barb., 630). The order should be affirmed, but without costs, as the question is new.

Order affirmed, without costs.