Majority
p. 287Marshall P. Stafford, App’lt, v. Charles Azbell, Resp’t. (New York Common Pleas, General Term, Filed May 17, 1894.)
Headnote
Conversion—Tenants in common.An action for conversion cannot be maintained by one tenant in common against a co-tenant.
Appeal from a judgment on the dismissal of the complaint at trial term.
Marshall P. Stafford for app’lt; Vanderpoel, Camming & Goodwin (Delos McCurdy, of counsel) for resp’t.
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
p. 288
show that there was a conversion of the money claimed. The mere reception of the money did not constitute a conversion.
There is no pretence that there was a demand of this money made at any time. Besides, it is admitted that there was a reciprocal interest on the money, and hence they were tenants in common of it and an action for conversion cannot be maintained under such circumstances; McMahon et al. 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. 288