
    Charles G. Tell, Respondent, v. George H. Beyer, Appellant.
    Practice. Effect of pleadings. Recovery of personal property. While it is, doubtless, good law that one partner cannot replevy property from the bailee of the other partner, yet the facts upon which such defense is predicated should be alleged. Hence, where the answer, in an action to recover personal property, admits ownership in the plaintiff . without qualification, and only denies possession absolutely in the defendant, also the alleged value and a demand, a question is not presented to which the above rule of law can be applied. The ownership of plaintiff being admitted—by not being denied—in the pleadings, and possession in defendant being found by the jury on the evidence, the case is closed against a legal defense, on the ground of joint ownership by the plaintiff and a partner, and of possession under authority of one of the partners.
    This is an action to recover the possession of certain machines, alleged by the plaintiff in the complaint to be “the goods and chattels of the plaintiff.” The answer denied that the defendant had become possessed of, or that he wrongfully detained, the property in question. It also contained a denial of the value, and an allegation that no demand had been made upon him for the goods. On the trial articles of agreement were introduced, which proved a partnership between the plaintiff and one Gorman, in a certain manufacturing business, and that the articles in suit were purchased by the plaintiff for, and were used in, the ■ said business. Testimony was given tending to show a demand, and refusal, and conflicting testimony upon, the same point was given by the defendant.
    The defendant moved to dismiss the complaint, first, on the ground that Gorman, under the agreement, had an equal interest in the property; second, that defendant’s possession or detention of the property is not shown. The motion was denied, and the defendant excepted. At the close of the evidence the case was submitted to the jury, who found a verdict for the plaintiff. The judgment entered upon this verdict was affirmed by the General Term of the first district, and the defendant now appeals to this court.
    
      
      A. B. Crane, for the appellant.
    
      Bogardus & Brown, for the respondent.
   Hunt, Ch. J.

The appellant insists, with great earnestness, that the machines in question were partnership property, that they were in defendant’s possession by authority derived from the partner Gorman, and that one partner cannot replevy property from the bailee of the other partner. I am of the opinion that these machines were the property of the firm, under the agreement read in evidence, and that each partner, therefore, had an ownership in the same. Without any careful examination of the point, I am also of the opinion that the other portion of the above proposition is sound law, to wit, that one partner cannot replevy property from the bailee of the other partner. The appellant’s difficulty lies in the application of this law to the present ease. In the first place the pleadings admit the ownership of the property in the plaintiff, without qualification. The allegations that the goods were the “ goods of the plaintiff,” is a sufficient allegation of ownership. (Childs v. Hart, 7 Barb. 370.) This is not denied in the answer, and under the Code stands as an admitted fact.

In the second place the answer makes no claim for holding by virtue of an authority from the partner Gorman. It simply denies the possession, denies a demand, and controverts the value. Evidence to sustain the alleged defense would have been inadmissible. In the third place the defendant did not contend, at the trial, that he held the possession under an authority from Gorman, and ask a judgment on that ground, but insisted, and both Gorman and the defendant testified that the defendant had no possession in any character, or to any extent, and that he did not resist the right of the plaintiff at once to take the property. Thus, Gorman says: The goods were in my possession at the time they were taken, and not in the defendant’s possession. I had possession of the rooms where they were; Beyer had nothing to do with the rooms; I hired the rooms; Beyer did no business there.” So the defendant, Beyer, testifies: “I had not any possession of the machines; I never exercised any control over those goods; I had nothing to do with the rooms where they were.” In his motion for a nonsuit, the defendant placed himself “ on the ground that Gorman, under the agreement, had an equal interest in the property.” He makes no assertion, however, that he held by virtue of Gorman’s title. The same thing is to be noticed in the defendant’s requests to charge, when the case was submitted to the jury. They are, first, that, under the agreement in evidence, the plaintiff is not entitled to recover; second, that the defendant’s possession of the property is not proved, and the defendant is not liable. The defendant’s law is well enough, but there are no facts on which to baáe its application to the present ease, and no attempt was made to raise it on the trial. It is not available to the defendant on this appeal.

The next objection is, that the defendant had no possession of the machines, and that no judgment could, therefore, be rendered against him. The defendant requested the judge so to decide, and excepted to his refusal. As I have already stated, and quoted their language, both Gorman and the defendant explicitly swear that the defendant in fact had no possession of the goods. On the contrary, the plaintiff testified that he discovered this property at Thirty-seventh street, in the possession of the defendant. I asked if he had those things in his possession. He said he had. I asked him to give them up, and told him they were mine. He refused to give them up.” On his own examination, he reiterates in different language, that the defendant insisted that he held the property for his brother, and would not give it up without an order from him. The witness, Fremman, also testifies that the plaintiff demanded of Beyer the goods belonging to him, that Beyer said he had some goods and machinery in his possession, and he held them for his brother, who had debts from Gorman, and he could not give up any part of them without an order from his brother.

This evidence raised a fair question for the jury, upon the point of the defendant’s possession of the particular machine in question. The judge was not only justified in submitting the question to the jury, but it would have been error to have ruled it as a question of law. (Parker v. Jervis, January Term, 1867; Cobb v. Cornish, 16 N. Y. 602.)

Some other exceptions were taken, but they are without merit, and the judgment shpuld be affirmed.

All concur except Mason, J.

Judgment affirmed.  