Kerner v. Boardman

Pryor, J. The validity of the judgment is impugned upon three grounds, but a slight discussion suffices to show that neither objection is tenable. In the first place, the appellant challenges the sufficiency of the complaint, because it omits to allege a right of possession in the plaintiff. True it is that, to recover in trover, actual possession or a right of possession is indispensable, (Clements v. Yturria, 81 N. Y. 290;) but the gist of the action is injury to the property, as in trespass the gist of- the action is injury to the possession. Hence, in trover, an averment of property is necessary; but, as possession is prima facie evidence of property-, it results that the evidence in the two actions is commonly identical, namely, proof of possession rightful as against the defendant. And, as the fact of possession imports a right of property, so, conversely, the right of property imports the right of possession. “The right of property draws to it the right of possession.” 2 Greenl. Ev. § 614; 7 Lawson, Rights, Rem. & Pr. §' 3664. In trover, therefore, an allegation of property in the plaintiff involves an allegation of the right of possession; and proof of title suffices as proof of possession, until the presumption is overcome by contrary, evidence. Hence the allegation in the complaint th'at “the defendant wrongfully took into his possession property of which the plaintiff was the owner,” although not artistic in form, is in substantial conformity with the requirement of good pleading. “It is necessary in an action for conversion that the plaintiff should [788] show, by his complaint, title to the property alleged to be converted, or his right to the possession thereof. Either of these is sufficient to entitle him to maintain the action.” Berney v. Drexel, 33 Hun, 34, 35; Dodds v. Johnson, 3 Thomp. & C. 215; Malcolm v. O'Reilly, 46 N. Y. Super. Ct. 222; Heine v. Anderson, 2 Duer, 318; Davis v. Morrell, 16 Wkly. Dig. 530; Baylies, Code PI. §30; Moak.Van Sant. PI. marg. p. 275.' Next, the appellants contend that, as against Boardman, a creditor of Payne & Storm, the vendors, there was not an actual and continued change of possession in favor of Kerner, the vendee. But it appears without contradiction that, simultaneously with the payment and bill of sale for the teas, a warehouse receipt for them, to the order of Kerner, was given to him, and that they so remained on storage until the seizure-of them by the sheriff. Obviously and indisputably, here was a sufficient acquisition and retention of possession by Kerner, the plaintiff, to satisfy the statute. Finally, the indemnitors (appellants) contend that no cause of action was established against them. But a complete right of recovery against the sheriff was shown, and that was enough to authorize'a recovery against the indemnitors. Pool v. Ellison, 9 N. Y. Supp. 171; Goodman v. Goetz, 13 N. Y. Supp. 267, (general term, common pleas, February, 1891;) Hess v. Hess, 117 N. Y. 308, 22 N. E. Bep. 956. Judgment affirmed, with costs. All concur.