Hallett v. Carter

Headnote

Action for conversion —when a demand need not he made before suit brought.

Appeal by the plaintiff from judgment of the County Court of Steuben county, affirming a justice's judgment in favor of the •defendant.

The action was for the wrongful taking and conversion of stone belonging to the plaintiff. The defendant was notified that :the stone belonged to plaintiff before he took them and put them into his wall. There was no evidence of a demaiid and refusal before the summons was issued, though the constable made a •demand before he served, but after he received the summons.

The justice rendered judgment against the plaintiff as he states, “ oh the ground that no demand was made by plaintiff for the •stone in question previous to the commencement of this action.’'

The court, at General Term, said : “As the defendant was notified that the stone belonged to the plaintiff before he caused them to be taken and laid in his wall, no demand was necessary, .if at the time the notification was given and stone taken by defendant they were the property of the plaintiff. (Cobb v. .Dows, 9 Barb., 282 ; S. C. affirmed, 10 N. Y., 335 ; Boyce v. JBrockway, 31N. Y.,490; Stormy.Livingstone, 6 Johns., 45 ; Pierce

Y. Van Dyke, 6 Hill, 613 ; White v. Brown, 5 Lans., 78 ; Twinam Y. Swart, 4 Lans., 263 ; Rawleyv. Brown, 8 Weekly Digest, 532.)

The ground upon which the justice decided against the plaintiff was erroneous.”