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Brooklyn Ash Removal Co. v. Connell

173 A.D. 5 Court Second Department, Decision date 1916-05-12 English

Delivered by Putnam, J.:

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Brooklyn Ash Removal Company, Inc., Appellant, v. Ellen T. Connell, Respondent.
Second Department,
May 12, 1916.

Headnote

Replevin—pleading — answer — motion to strike out allegation as sham, frivolous and irrelevant—judgment on pleadings.
In an action of replevin by the charterer of a scow, whose right to use the same did not amount to complete control because the owner kept her master on board, an allegation in the answer that the defendant, the owner, had so “furnished and placed in charge of said boat a captain who remained on said vessel,” should not be stricken out as sham, frivolous and irrelevant, although accompanied with argumentative matter as to the legal effect of the captain’s presence.
Plaintiff is not entitled to judgment on the pleadings.
Replevin not only requires possession, but an exclusive right to possess and control property.
Appeal by the plaintiff, Brooklyn Ash Removal Company, Inc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of March, 1916, denying its motion to strike out portions of the answer and for judgment on the pleadings.
Franklin Grady, for the appellant.
Nelson Zabriskie, for the respondent.

Under this charter-party plaintiff’s right to use the scow did not amount to complete control, dominion and possession, because defendant kept her master on board. He was not merely there to take orders from the charterer, but for the

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purpose of care of the property and to reheve the charterer from, responsibility. The master’s agency was set forth with unusual particularity in the owner’s agreement.

“We will furnish a captain for each scow; at our own expense, who will be under your control and orders, but you are not to be responsible for the acts of any captain in the care, movement or navigation of said scows, and we will save you harmless, and defend you from any claims, actions, or suits arising therefrom.”

Replevin, however, not only requires possession, but an exclusive right to possess and control the property. (Rogers v. Arnold, 12 Wend. 30 .) Paragraph 4 of the answer (which plaintiff moved to have struck out as sham, frivolous and irrelevant) has the material averment that defendant had so “furnished and placed in charge of said boat a captain' who remained on said vessel.” While this is accompanied with argumentative matter as to the legal effect of the captain’s presence, the paragraph is not for that reason to be stricken out. (Town of Essex v. N. Y. & Canada R. R. Co., 8 Hun, 361 .) Obviously, too, on such pleadings, plaintiff should not have judgment.

The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Carr, Stapleton and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

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