PETTENGILL a. MATHER

PETTENGILL a. MATHER. Supreme Court, First District; General Term, September, 1861. Arrest.—Fiduciary Capacity.—Security. Where the plaintiff in an action to recover money received by the defendant in a fiduciary capacity, -recovered judgment therefor,—Held, that notwithstanding he had previously taken from the defendant security for the demand, which he afterwards accepted in part payment, with the consent of the defendant, he might nevertheless issue an execution against the person. Appeal from an order granting leave to issue an.execution against the person. This action was brought to recover a balance alleged to be due from the defendant for moneys collected by him while in plaintiff’s employment. The defence was, that the demand, if any existed, which was denied, had been settled by the defendant’s giving a bond and mortgage upon real property in Brooklyn. The allegations in the complaint amounted to an averment that the action was brought to recover for money received in a fiduciary capacity. The cause was referred to Hon. Charles P. Kirkland, who reported in favor of the plaintiff, who then entered judgment for $1536.68. Ho order of arrest was ever issued in the action. After an execution upon the judgment against defendant’s property had been returned unsatisfied, the plaintiff moved at special term, upon the pleadings, and an affidavit setting forth the nature of the cause of action, and on the testimony in' the cause and the referee’s report, for leave to issue execution against the person. It appeared from the testimony taken before the referee, that the defendant, after giving the bond and mortgage, gave plaintiff a deed of the mortgaged premises, for which the plaintiff allowed $300 on the original demand. The referee also found that the bond and mortgage had been taken by the plaintiff as collateral security, and not in satisfaction of his demand. Mr. Justice Leonard, at special term, granted the motion, and from his decision the present appeal was taken. Cornelius Fiske, for the appellant. Benjamin Vaughan Abbott, for the respondent. [MAJORITY — By the Court.—Ingraham, J.] By the Court.—Ingraham, J. —We think the order should be affirmed. The case in 14 How. Hr., 408, was one in which the checks were received in satisfaction of the debt. The character of the indebtedness was not changed by taking security, which was afterwards accepted in part payment. The residue of the claim was still of a fiduciary character, and the defendant liable to arrest. Order affirmed. Present, Clerke, P. J. Ingraham and Leonard, JJ.