Ives v. Striker — 69 A.D. 601

Majority

p. 601

Lillian Gertrude Ives, Respondent, v. George W. Striker, Appellant.

Headnote

Equitable estoppel — the owner of a chattel permitting, without olyection, an executor of her deceased husband to dispose of it.

In an action to recover damages for the conversion of a horse and carriage and robes which were given to the plaintiff by her husband during his lifetime, it appeared that such chattels, together with other similar chattels, were in the possession of the husband at the time of his death, and that they came into the

p. 602

possession of the defendant as executor of the husband’s estate; that the plaintiff never laid claim to the property, and .that there was nothing to indicate her ownership thereof; that after the lapse of a, year the defendant sold the chattels in suit together with the other chattels belonging to his testator, and filed his account which set forth thé sale and described the chattels in general terms; that the plaintiff, who appeared by attorney on the accounting, made-no objection thereto, and permitted the proceeding to pass to the final decree.

Held, that the plaintiff was precluded from maintaining the action by the doc-, trine of equitable estoppel.

Appeal by the defendant, George W. Striker, from a judgment of the Supreme Court in favor of the plaintiff, entered in -the office: of the clerk of the county of Westchester on the 7th day of April,-1900, upon the decision of the court, rendered after a trial at. the-Westchester Trial Term before the court without a jury, upon an agreed statement of facts.

The cause of action related to damages for the conversion of a-horse and carriage and two robes belonging to the plaintiff. >

Morris 8. Thompson, for the appellant.

Frwnois X. Donoghue, for the respondent.

We think that the plaintiff is precluded on the doctrine of equitable estoppel and that the defendant is not chargeable with any legal fault. The chattels were given to the plaintiff by her husband in his lifetime, but they Were found by the defendant, with other similar chattels, in the possession of the husband at the. .time of his death, and so they came into the possession of the defendant as executor. The plaintiff never laid claim to them, and there was no ear mark upon any of them to indicate either her ownership or her claim thereto. After .a year had passed, the defendant sold the chattels of his testator, and among them were the chattels in suit. He tiled his account which showed such sale and described therein the chattels in general terms. The carriage described in the complaint as a Stanhope was thus described in the account, and it was the only vehicle of such description. The plaintiff appeared by attorney on the accounting, made no objection thereto, and permitted it to go to a final decree. Besides these things she must have known that throughout all the time some one was paying for the'

p. 603

keep of the horse. On the other hand, the defendant received the chattels in the natural course and disposed of them as warranted by law. In the absence of all notice he had the right to assume that they were the property of his testator. Nothing occurred which suggested the title in another or the claim thereof by another. He was not bound under the circumstances to inquire. Moreover, inquiry would be a vain thing in the absence of any clue or indica-, tion of its proper direction.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.