Scofield v. Whitelegge — 33 N.Y. Super. Ct. 179

Majority

p. 179

CYRUS SCOFIELD, Plaintiff and Appellant, v. JAMES H. WHITELEGGE.

Headnote

Claim and delivery.—Complaint in, requisites of.

1. Demand and refusal. Averment of not necessary when the detention is alleged to be wrongful.*

2. Ownership, or a right to the possession, by the plaintiff, necessary to be averred.

* Note by Reportes.—This overrules so much of the case of Fuller ®. Lewis, 3 Abb. Pr. 383 , as holds that the complaint must aver a demand and refusal.

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1. What not a sufficient averment.

A. An averment that defendant “ detains from the plaintiff.”

Before Mowell, Jones and Spencer, JJ.

Decided February 4, 1871.

The action was to recover the possession of personal property.

The complaint was as follows:—

The above-named plaintiff, for a complaint in this action, alleges:

That the above-named defendant has become possessed of and wrongfully detains from this plaintiff the following property—that is to say : One rosewood Ernest Grabler piano, bio. 6604 (Ernest Grabler, maker), of the value of four hundred dollars.

Wherefore this plaintiff demands judgment against the said defendant for a return, &c., and for damages, &c.

The answer was a specific denial.

At the trial before Mr. Justice Freedmaw and a jury, a motion was made to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

The motion was granted, the complaint was dismissed and judgment entered for costs.

The plaintiff appealed.

Mr. Oscar Frisbie, for appellant.

Mr. A. H. Reavy, for respondent.

The objections to the complaint in this case, are, that it does not allege ownership of the property by the plaintiff, or a demand and refusal before suit.

The latter allegation is not necessary, where the de

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tention is alleged to be wrongful. In that case, a demand and refusal must be proved, as evidence of a wrongful detention, but need not be averred.

It is otherwise with the allegation of ownership, or, what is its equivalent, a right to the possession of the property.

Ownership, or a right to the possession of the property claimed, must be averred, as well as proved. Such is the text of the elementary writers (Grah. Pr. 2 ed. 879 ; 2 Burr. Pr. 2 ed. 13) ; and the books of precedents conform to the text writers. See, also, Prosser v. Woodward ( 21 Wend. 205 ).

The affidavit which the Code requires, to obtain a delivery of personal property, must contain an averment that the plaintiff is the owner, or is lawfully entitled to the possession of the property. And it seems to me a complaint would be insufficient within a similar averment.

It was contended by the appellant’s counsel, that the allegation detains from the plaintiff ” was sufficient as a pleading, and would let in proof of ownership. It might, perhaps, be implied from such an' averment, that it was the plaintiff’s property ; as otherwise it could not be wrongfully, detained from him. But facts so essential should not be left for implication; and it would form a bad precedent to allow such loose pleading to pass.

The plaintiff could have brought another action, or perhaps have obtained leave to amend his complaint.

The omission in it was fatal as it stood, and the judgment dismissing it- must be affirmed.

Cases cited

Prosser v. Woodward 21 Wend. 205 N.Y. Sup. Ct. p. 181