Sluyter v. Williams — 31 N.Y. Super. Ct. 215

Majority

p. 215

JOANNA A. L. SLUYTER, Plaintiff and Appellant, v. GEORGE E. WILLIAMS, Defendant and Respondent.

Headnote

In action to recover the possession of personal property wrongfully detained, but which came lawfully into defendant’s possession, it is necessary for plaintiff to prove a demand before suit brought.

Formal errors in the entry of judgment must be corrected on motion at Special Term. The General Term will not, upon appeal from the judgment, make such corrections in the first instance.

Before Barbour, C.J., Fithian and Freedman, JJ.

[Decided May 11, 1869.]

This case was tried before Chief-Justice Robertson and a jury, and was brought to recover goods and chattels belonging to the plaintiff, and alleged to be wrongfully detained by the defendant.

The defendant admitted the possession of the goods, but alleged that they were deposited with him by one William B. Sluyter, the husband of the plaintiff, he agreeing to pay forty dollars per month for the storage of the same. Defendant further alleged that no part of said money due for storage had been paid or tendered by said William B. Sluyter or the plaintiff, and that he was ready to deliver the same upon payment of his charges for storage. Upon the plaintiff resting her case, the defendant’s counsel moved to dismiss the complaint upon’ the ground that no demand for the goods had been made upon the defendant by the plaintiff.

The Court granted the motion, to which ruling the plaintiff excepted:

Mr. George W. Stevens for appellant.

Mr. A. H. Reavey for respondent.

p. 216

By the Court:

The defendant lawfully came into possession of the goods and chattels claimed by the plaintiff in this action, and consequently he could not be guilty of an unlawful detention, except after due demand, and a refusal on his part, subsequent to said demand, to deliver. It was incumbent on the" plaintiff to prove a sufficient demand "as a part of his case, and as the evidence is totally insufficient upon this point, no error has been committed upon the trial in dismissing the plaintiff’s complaint. In the case relied on by the plaintiff ( 6 Hill, 613 ), the goods had been wrongfully taken, and for that reason no previous demand was held to be necessary.

If the judgment entered is irregular in form, the plaintiff’s remedy is by motion at Special Term, and the General Term will not, upon appeal, make the corrections in the first instance.

The judgment appealed from should be affirmed with costs.