Barry v. Calder — 16 N.Y. St. Rep. 295

Majority

p. 295

John S. Barry, Resp’t, v. J. Frank Calder and Gouverneur Ogden, Impleaded, App’lts.

(Supreme Court, General Term, Third Department,

Filed May, 1888.)

Headnote

1. Pleading—When a complaint states a cause of action for trover.

The complaint in an action to recover damages for the wrongful detention or conversion of personal property alleged that one M. owner of fifty shares of L. S. and M. S. R. R. Co,, and having the certificate for the same in her possession, delivered the same to the defendants who have since wrongfully; detained and still wrongfully detain the same. That afterward M, assigned her right in said stock and all claims for damages to plaintiff. That thereafter plaintiff demanded said certificate of defendants and they refused to deliver it. It is also alleged that after the delivery of the certificate to these defendants that the certificate came into the possession of other defendants (naming them) that they converted it to their own use, before M assigned her rights to plaintiff. Held, that the complaint stated a cause of action. That if these defendants wrongfully put themselves in such a condition that they could not deliver the certificate, their wrongful act would be no excuse for their, refusal to deliver.

'3. Same—What need not be alleged—Code Crv. Pro., §§ 558, 549, SUED. 3 AND § 1731.

The provisions of Code Civ. Pro. § 1731 as to what the complaint shall allege does not apply to an action brought to recover damages for the wrongful detention and conversion of personal property. Code Civ. Pro., §§ 558 and 549, subdivision 3.

Appeal from an order made at the Rensselaer county .special term, denying a motion to vacate an order of arrest.

C. B. Wellington, for app’lts; O. S. McChesney, for resp’t.

This is an appeal from an order denying a motion to vacate an order of arrest against Oalder, Ogden and Ogden, three of the defendants. The motion was made and the appeal is argued on one ground, only, viz., that the complaint does not set forth a sufficient cause of action. See Code, § 558, as now amended, and section 549, subd. 2, as now amended.

The action is to recover damages for the wrongful detention or conversion of personal property. Section 1721 is ■cited to show what must be stated in the complaint. But it is to be noticed that that section is contained in article 1, title 2, chapter 14, which treats of ‘ ‘ an action to. recover a •chattel,” that is the old action of replevin. And the complaint referred to is a complaint in such an action.

p. 296

Now the pz'esent action is not one of replevizz. It is to use the familiar word, azz action of trover. Replevin could not be had, because defendants have been arrested. Section 1714. Section 1721, therefore, is not important in considering the present question.

We have now simply the question: Does the complaint set forth a sufficient cause of action against these three defendants. The complaint alleges that Helen Markham, owner of fifty shares of Lake Shore and Michigazz Southern Railroad Company, and having the certificate for the sazne in her possession, delivered the same to Ogden, Calder & Co. (these three defendants), who have since wrongfully detained azzd still wrongfully detaizz the same. That after-wards she assigzied her right in said stock and all claims for damages to plaizztiff. That, thereafter plaizztiff demanded said certificate of Ogden, Calder & Co., azzd they refused to deliver it. These stateznezzts make out a sufficient statement of a cause of action for detention of persozzal property.

There are, however, other allegations in the complaint which, it is claimed, destroy the effect of those above stated. It is averred that after the delivery of the certificate to these defendants, that certificate came into the possession of other defendants, viz., Work, Strong, Wood & Sturgis (Work, Strong & Co.); that they converted it to their use before Helezz Markham assigned her rights to plaintiff; Therefore, these defendants say that they could not comply with the demand for the certificate znade on them by plaizztiff, and hence their refusal gave no cause of action. Bowman v. Eaton, 24 Barb., 532 ; Hawkins v. Hoffman, 6 Hill, 586 . Now it must be noticed that we are not discussing the matter of proof or of evidence on the trial. We are only looking at the pleadings. Whether the cozzversiozz of tlze certificate by Work, Strong & Co. will be an excuse to these three defendants for their zzot returning the certificate, when demanded, may depend upon matters to be proved on the trial. If these three defezzdants wrongfully put themselves in such a condition that they could not deliver the certificate ozi demazzd, then their wz’ozzgful act will be no excuse for their z-efusal to deliver. If they rightfully put their certificate out of their possessiozz so that they are not to blame for the alleged act of Work, Strong & Co., then they will probably succeed on the trial. These are results which will depezzd on the proof. Let us suppose that the allegation in" regard to the possessiozz by Work, Strong & Co. and the conversion by them had not. been contained izz the complaint, but set up in the answer, what defense would these facts have been ? Helen Markham puts her property into the hands of these three de

p. 297

fendants; her assignee demands it, and they reply, and some one else has it. That is what every embezzler might say, when called on to return property entrusted to him.

We think the complaint states a cause of action.

Order affirmed, with $10 costs and printing disbursements.

Land on, J., concur.