Slavenburg Soelling Corp. v. W. A. Assomull & Co.

15 A.D.2d 645, 223 N.Y.S.2d 609

Opinion

The test of whether a body execution should issue where the right depends on the nature of the action is whether the pleadings and proof show that the verdict was sought and obtained on one of the grounds specified in section 826 of the Civil Practice Act. There can be no dispute that conversion by a fiduciary is one of these grounds (Civ. Prac. Act, § 826, subd. 7). An assignor of an account receivable is such a fiduciary (Vandeweghe v. Schwartz, 187 App. Div. 219). The right to body execution is not affected by the fact that the conversion also constitutes a breach of contract and is so pleaded. Nor is it significant that the execution is sought against an individual defendant who participated in the conversion rather than the corporation which made the assignment (Rubin v. Freeman Elec. Constr. Co., 8 A D 2d 700). Such a participant in the conversion is liable for the conversion (Hinkle Iron Co. v. Kohn, 229 N. Y. 179). Concur — Botein, P. J., Breitel, Valente, Eager and Steuer, JJ.