p. 429Before Curtis, Ch. J., and Freedman, J.Decided December 1, 1879.Appeal by plaintiff from an order dismissing the complaint and judgment thereon.
The plaintiff, in his complaint, alleges that he is the owner, and entitled to the immediate possession of certain furniture therein described, of the value of $700 ; that the defendant became possessed of said property wrongfully, and the plaintiff duly demanded the delivery of said property to him, which was refused, and the defendant converted the same to her own use; wherefore the plaintiff demands the delivery of said property, with $200 damages for its detention, besides the costs of this action.
The answer denies the allegations of the complaint, and alleges that the furniture was, before the commencement of the suit, duly levied upon by the sheriff, and taken from defendant’s possession by virtue of due legal process, of which the plaintiff was no tilled by the defendant, and was able to have protected his rights and title, if any he had, in the furniture. The complaint was dismissed at the trial. The plaintiff duly excepted, and appealed from the order and the judgment of dismissal.
Stephen B. Brague, attorney, and of counsel, for appellant, urged, among other things:
This is an action of claim and delivery. The learned judge below is too refined in his distinction, in holding that the word “wrongfully” converts this action into an action for trespass. There is no such distinction in the books. Now the fact is, that the defendant did come into possession of the goods wrongfully. No matter how innocently a person may come into the possession of property, the law decides that it is wrongful if
p. 430derived from a thief, or from a person having no show of title, and no demand before suit is necessary (
Farrington v. Payne, 15 Johns. 431 ; Pillsbury v. Webb,
33 Barb. 213 ; Pease v. Smith, 61
N. Y. 213 ). Here the property was in the possession of the plaintiff when it was run off, removed, carried away contrary to the statute
(Laws of 1871, c. 77), in fact, stolen, for the statute only relates to the time before foreclosure; after default and taking possession of property, the surreptitious removal is a larceny, and any person converting it is liable in trover (
Hoffman v. Carow, 22 Wend. 285 , and cases above cited). Again, there was no defense to the action except the general denial. The case was proved on showing title, demand and refusal, and the answer setting up title in another was irrelevant ; for it is no defense to an action to recover property converted to allege title in another, unless the defendant connects himself with the title (Duncan v. Spear, 11
Wend. 54 ; Rogers v. Arnold, 12
Id. 30;
Stowell v. Otis, 71 N. Y. 36 ).
Platt, Gerard & Bowers, attorneys, and John M. Bowers, of counsel, for respondent, urged:
I. The complaint is for an unlawful taking by the defendant; the proof was of a lawful reception by the defendant, and, at most, of a refusal to deliver only on conditions necessary to the defendant’s protection. The cause of action was, therefore, wholly unsustained by proof. The court was quite right in dismissing the complaint; it could not have done otherwise. The plaintiff insisted on his right to a ruling in his favor, and refused to amend or to ask the privilege of doing so.
II. The complaint demands judgment that the property be returned, and for $200 damages for its detention. A return of the property could not be had in this action. Plaintiff should have brought replevin if he desired such remedy. No proof of damages, by
p. 431reason of the alleged detention, was offered, and the court was obliged to dismiss the complaint.
III. No refusal to deliver, on which an action for conversion could be maintained, was proved. Defendant at first acquiesced in the plaintiff’s claim, but on finding that the plaintiff's claim to the possession of the property was seriously disputed, asked indemnity. The course the defendant pursued was the only safe one for a warehouse-keeper, and is sustained by Ball
v. Liney (
48 N. Y. 6 ).
IV. The mere possession and exhibition of a chattel mortgage, covering the property stored with the defendants, with no evidence that it had become enforceable, was not such proof of ownership and of the plaintiff’s right to take possession as to justify an action for conversion for refusal to deliver. The mere existence of the mortgage by no means changed the possession or right to the possession of the property, and it was certainly not enforceable against the defendant without some evidence of breach of its terms (Bliven v. Hudson River R. R. Co., 36 N. Y. 405 ).
V. The equities of this case are all with the defendant. She innocently received the goods ; when the agent of the plaintiff called with his mortgage, although he showed no breach of its terms, she pe’mitted him to roam through the building in search of the goods, saying, if the mortgage was all right it should not be resisted ; and even when she found his title to the property was in litigation, still offered to give it up on being indemnified, but plaintiff refused all and any indemnity. The defendant did only what any prudent person would have done, and is entitled to the protection of the court; and as a very stringent provision of the law has been sought to be enforced against her, no variation of a pleading should be permitted to help the plaintiff to a new trial.
The trial of this action appears to have been conducted on the theory that it was an action of trespass. The complaint alleges that the defendant became wrongfully possessed of the property in question, and also alleges that she wrongfully converted it to her own use. The prayer for relief demands the delivery of the property and damages for its detention. The language used in .the complaint may be construed as meaning that the defendant wrongfully took and unjustly detains the goods. This was the form, before the Code, of a declaration in the cepit et detinet. The provisions of the Revised Statutes, as to what the declaration shall allege in replevin (2 R. S. 523, § 36) have been to a considerable extent superseded by the provisions of the Code, respecting what is there designated as “ claim and delivery of personal property.” The Code does not change the requisites to maintain the action (Scofield v. Whitelegge, 49 N. Y. 260 ). The proceedings in the present action appear, tho'ugh not very clearly, to present the requisites to maintain it as an action to recover the possession of personal property. The allegation in the complaint, of the conversion of the property to the defendant’s own use, is consistent with a complaint in an action of trover, and the allegation of wrong on the part of the defendant in respect to acquiring possession of the property, was construed at the trial as an allegation of a tort in the nature of trespass. The requisites to maintain the proceedings m “ claim and delivery” are too distinctly defined to warrant a complaint presenting a triple aspect, and that may be available in replevin, trespass or trover, as the exigencies of future proceedings in the action may render desirable. But if parties elect to proceed to trial in a suit, where the complaint is so indefinite or uncertain that the precise nature of the charge is not apparent, the embarrassments occurring in the present
p. 433instance are very likely to arise. The demand, for the delivery of the property and of damages for its detention, in the complaint, indicate that the pleader had in view an action under the Code for “ the claim and delivery of personal property.” That it is such is the only view I have been able to arrive at (
Dows v. Green, 3 How. Pr. 377 ; Spalding
v. Spalding,
Id. 297;
Scofield v. Whitelegge, 49 N. Y. 259 ).
Whatever facts are stated in the complaint, which were unnecessary to entitle plaintiff to the relief he asks, may be disregarded as superfluous.
The plaintiff appears to have been rightfully entitled to the possession of this property. The evidence discloses that it was removed from his possession while he was proceeding to foreclose a chattel mortgage in his favor that existed upon it, and that this was done surreptitiously and wrongfully ; that he demanded it of the defendant, in whose possession it was, as a warehouse-keeper, and that she refused to surrender it, unless a real estate bond of indemnity to the extent of $1,500 was given to her. I am not aware of the existence of any legal requirement that a mortgagee, finding the mortgaged property to which he has a right, of possession placed surreptitiously in a warehouse, is bound to give the warehouse-keeper a bond of indemnity, nor do I understand the cases cited by the defendant’s counsel (Ball v. Liney, 48 N. Y. 6 ; Bliven v. Hudson River R. R. Co., 36 Id. 405) to go so far as to sustain that view.
If there are conflicting claimants the course to be pursued is to immediately commence a suit in equity in the nature of a bill of interpleader against the claimants, and have the controversy, and the right to the possession of the property, -judicially determined (Ball v. Liney, 48 N. Y. 13 ).
The conclusions arrived at in regard to the pleadings, and the relief and nature of the action, consider
p. 434ing it not as an action of trespass, but simply an action of replevin, are, as it seems to me, in accord with the views of the learned trial judge, while sitting as a referee in the'replevin suit of Levin
v. Russell ( 42
N. Y. 253 ) and affirmed by the supreme court at general term, and by the court of appeals, and approved in Scofield
v. Whitelegge ( 49
N. Y. 259 ).
The plaintiff had shown upon the trial of the action that he was at least entitled to the possession, or to be restored to the possession, of the mortgaged chattels (Levin v. Russell, 42 N. Y. 251 ).
Any failure of proof on the part of the plaintiff as to damages sustained by the detention, or as to the value of the goods, does not appear to have been among the reasons for the dismissal of the complaint, nor would the dismissal on such grounds have been tenable.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Freedman, J., concurred.