Kerner v. Boardman — 39 N.Y. St. Rep. 61

Majority

p. 61

Charles W. Kerner, Resp’t, v. Charles H. Boardman et al., App’lts.

(New York Common Pleas, General Term,

Filed June 1, 1891.)

Headnote

1. Conversion—Pleading—Allegation of possession.

The allegation in a complaint for conversion that “the defendant wrongfully took into his possession property of which the plaintiff was the owner,” is in substantial conformity with the requirement of good pleading that there must be an allegation of possession in the plaintiff.

3. Same.

Plaintiff paid for the teas in question and received a bill of sale, and at the same time a warehouse receipt for them, to the order of plaintiff, was given to him, and they so remained on storage until the seizure of them by the sheriff under a claim that plaintiff’s vendor had obtained them frorn defendant Boardman by fraud. Held, that there was a sufficient acquisition and retention by plaintiff to satisfy the statute.

Appeal from judgment on verdict and from order denying new trial.

Action, trover for conversion of a parcel of teas. Plaintiff bought the teas of Payne & Storm in good faith and for value paid. Upon an allegation that Payne & Storm had got the teas from him by fraud, defendant'Boardman brought replevin against

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Johnson, assignee for creditors of Payne & Storm, and under process the sheriff took possession of the teas. Kerner, plaintiff herein, made affidavit of claim to the teas, pursuant to | 1709 of the Code; and, having been indemnified by Boardman, the sheriff delivered the teas to him. Kerner sued the sheriff pursuant to § 1710 of the Code, and by order duly entered under § 1711, the indemnitors were substituted as defendants instead of the sheriff;

Wm. S. Beaman, for app’lts; Marbury & Fox, for resp’t.

—The validity of the judgment is impugned upon three grounds; but a slight discussion suffices to show that neither objection is tenable.

In the first place, the appellant challenges the sufficiency of the complaint, because it omits to allege a right of possession in the plaintiff. True it is, that to recover in trover actual possession or a right of possession is indispensable. Clement v. Yturria, 81 N. Y., 290 . But the gist of the action is injury to the property, as in trespass the gist of the action is injury to the possession. Hence, in trover an averment of property is necessary ; but as possession is prima facie evidence of property, it results that the evidence in the two actions is commonly identical, namely, proof of possession rightful as against the defendant. And, as the fact of possession imports a right of pioperty, so, conversely, the right of property imports the right of possession. “ The right of property draws to it the right of possession.” 2 Grreenl. on Ev., 614; 7 Lawson’s Eights, Eemedies, etc., § 3664.

In trover, therefore, an allegation of property in the plaintiff involves an allegation of the right of possession, and proof of title suffices as proof of possession until the presumption is overcome by contrary evidence. Hence, the allegation in the complaint that “ the defendant wrongfully took into his possession property of which the plaintiff was the owner,” although not artistic in form," is in substantial conformity with the requirement of good pleading. “ It is necessary in an action for conversion that the plaintiff should show by his complaint, title to the property alleged to be converted, or his right to the possession thereof. Either of these is sufficient to entitle him to maintain the action. ” Berney v. Drexel, 33 Hun, 34 , 35 ; Dodds v. Johnson, 3 T. & C ; 215 ; Malcolm v. O'Reilly, 46 Super., 222 ; Heine v. Anderson, 2 Duer, 318 ; Davis v. Morrell, 16 W. Dig., 530 ; Baylies on Code Pleading, § 30 ; Moak’s Van Santvoord, 275 (marginal).

Hext, the appellants contend that, as against Boardman, a creditor of Payne & Storm, the vendors, there was not an actual and continued change of possession in favor of Kerner, the vendee. But, it appears without contradiction that simultaneously with the payment and bill of sale for the teas, a warehouse receipt for them to the order of Kerner, was given to him, and that they so remained on storage until the seizure of them by the sheriff. Obviously and indisputably here was a sufficient acquisition and retention of possession by Kerner, the plaintiff, to satisfy the statute.

Finally, the indemnitors appellants contend that no cause of action was established against them. But a complete right of re-

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covery against the sheriff was shown, and that was enough to authorize a recovery against the indemnitors. Pool v. Ellison, 9 N. Y. Supp., 171 , 30 N. Y. State Rep., 315 ; Goodman v. Goetz, Gen. Term, Com. Pleas, February, 1891; 36 N. Y. State Rep., 731 ; Hess v. Hess, 117 N. Y., 308 ; 27 N. Y. State Rep., 346.

Judgment affirmed, with costs.

Allen, P. J., Bischoff and Pbyob, JJ., concur.