Majority
p. 733(8 Misc. Rep. 316.) STAFFORD v. AZBELL. (Common Pleas of New York City and County, General Term. May 17, 1894.) Argued before BOOKSTAVER, BISCHOFF, and PRYOR, JJ.
Headnote
Trover and Conversion—Who may Maintain—Tenants in Common.An action for conversion cannot be maintained by a tenant in common against his cotenant.
Appeal from trial term.
Action by Marshall P. Stafford against Charles C. Azbell. The complaint was dismissed, and plaintiff appeals. Affirmed.
For former report, see 26 FT. Y. Supp. 41.
Marshall P. Stafford, in pro. per.
Delos McCurdy, for respondent.
We do not think it necessary to take this case under further advisement. It seems to us that the election by the plaintiff of a cause of action in tort made it necessary for him to show that there was a conversion of the money claimed. The mere reception of the money did not constitute a conversion. There is no pretense that there was a demand of this money made at any time. Besides, it is admitted that there was a reciprocal interest in the money; and hence they were tenants in common of it, and an action for conversion cannot be maintained under such circumstances. McMahon v. Rauhr, 47 N. Y. 67 et seq. The judgment must be affirmed, with costs.
Cases cited
- McMahon v. Rauhr 47 N. Y. 67 p. 733