Barry v. Calder

Learned, P. J. This is an appeal from an order denying a motion to vacate an order of arrest against Calder, Ogden, and Ogden, three of the defendants. The motion was made, and the appeal is argued, on one ground only, viz., that the complaint does not set forth a sufficient cause of action. See Code, § 558, as now amended, and section 549, subd. 2, as now amended. The action is to recover damages for the wrongful detention or conversion of personal property. Section 1721 is cited to show what must be stated in the complaint. But it is to be noticed that that section is contained in article 1, tit. 2, c. 14, which treats of “an action to recover a chattel.” That is the old action of replevin; and the complaint referred to is a complaint in such an action. How the present action is not one of replevin. It is, to use the familiar word, an action of trover. Replevin could not be had because defendants have been arrested. Section 1714. Section 1721, therefore, is not important in considering the present question. We have now simply the question, does the complaint set forth a sufficient cause of action against these three defendants ? The complaint alleges that Helen B. Markham, owner of 50 shares of Lake Shore & Michigan Southern Railroad Company, and, having the certificate for the same in her possession, delivered the same to Ogden, Calder & Co., (these three defendants,) who have since wrongfully detained, and still wrongfully detain, the same; that afterwards she assigned her right in said stock, and all claims for damages, to plaintiff; that thereafter plaintiff demanded said certificate of Ogden, Calder'& Co., and they refused to deliver it. These statements make out a sufficient statement of a cause of action for detention of personal property. There are, however, other allegations in the complaint, which it is claimed destroy the effect of those above stated. It is averred that, after the delivery of the certificate to these defendants, that certificate came into the possession of other defendants, viz., Work, Strong, Wood, and Sturgis, (Work, Strong & Co.;) that they converted it to their use before Helen B Markham assigned her rights to plaintiff. Therefore these defendants say that they could not comply with the demand for the certificate made on them by plaintiff, and hence their refusal gave no cause of action. Bowman v. Eaton, 24 Barb. 532; Hawkins v. Hoffman, 6 Hill, 586. How, it must be noticed that we are not discussing the matter of proof or of evidence on the trial. We are only looking at the pleadings. Whether the conversion of the certificate by Work, Strong & Co. will be an excuse to these three defendants for their not returning the certificate, when demanded, may depend upon matters to be proved on the trial. If these three defendants wrongfully put themselves in such a condition that they could not deliver the-certificate on demand, then their wrongful act will be no excuse for their refusal to deliver. If they rightfully put the certificate out of their possession,, so that they are not to blame for the alleged act of Work, Strong & Co., then they will probably succeed on the trial. These are results which will depend on the proof. Let us suppose that the allegations in regard to the possession by Work, Strong & Co., and the conversion by them had not been contained in the complaint, but set up in the answer, what defense would these facts have been-? Helen B. Markham puts her property into the hands of these three defendants; her assignee demands it; and they reply: “Some one else has it.” That is what every embezzler might say when called on to return property intrusted to him. We think the complaint states a cause of action. Order affirmed, with $10 costs and printing disbursements.