Saratoga Gas & Electric Light Co. v. Hazard

The ground upon which this motion is made is that the complaint fails to set forth a sufficient cause of action. And it must be conceded that if this is the case, then the motion must be granted.

The complaint alleges the incorporation of the plaintiff; that at the times therein mentioned the plaintiff was entitled to the immediate possession of certain bonds, being in the form of which a copy is annexed to the complaint, the property of the plaintiff; and that on the 31st of January, 1889, in the city of New York, the defendant, being then in possession of the bonds, unlawfully converted and disposed of the same to his own use and to the plaintiff’s damage.

The objection to this complaint is that it does not allege a demand and refusal. It is undoubtedly true that where a defendant has come lawfully into the possession of personal property a demand must be made before trover will lie, unless there is evidence that the defendant has unlawfully parted with the possession of the property. So it has been held that an action for conversion against one who has received property under an agreement to return it cannot be maintained until it has been proven that its return has been demanded; so a Iona fide purchaser of personal property wrongfully taken from the possession of the owner is not liable for conversion until after demand and refusal. Gillet v. Roberts, 57 N. Y., 28 .

But it is equally true that where it appears that the defendant has exercised a dominion over the property such as he was not entitled to exercise by reason of its possession, for example, has sold and disposed of the property, an action for conversion will lie without a demand Kelsey v. Griswold, 6 Barb., 440 . This principle is also upheld in Colgate v. Pa. Co., 102 N. Y., 120 ; 1 N. Y. State Rep., 166, and cases there cited.

The allegation, therefore, contained in the complaint that the defendant had disposed of the bonds and converted them to his own use seems to fulfill the requirement showing a conversion, and no demand thereafter was necessary.

It is undoubtedly true that the mere allegation that the defendant had converted the property to his own use would not have been sufficient. But where it is coupled with the allegation that he has disposed of the property, which he had no right to do, and which disposal constituted the conversion, the allegation seems to be sufficient. We concur with the learned counsel for the appellant that the infirmities of the complaint cannot be aided by any allegation in the affidavit, and that if the complaint is defective in setting up a cause of action, the order of arrest should be vacated.

We do not think that this objection is well taken. The bond itself is made a part of the complaint. But whether or not the certificate, which appears to have been endorsed upon the bond," bore the signature of the trustee, we are not aware, because such certificate is not made a part of the complaint, and it is impossible for us to tell whether or not these bonds were in a condition to be of value. This would be a subject-matter of defense, and does not in any way invalidate the cause of action set out in the complaint.

• The order should be affirmed, with ten dollars costs and disbursements.

I concur. The allegation that the defendant disposed of and converted the bonds, is equivalent to saying that he disposed of them, which is a fact, and thereby converted them.

Bartlett, J., concurs.