
    William F. Clemmons, Respondent, v. Isaac Brinn, Appellant, Impleaded, with Ellen Pinstein, Defendant.
    (Supreme Court, Appellate Term,
    October, 1901.)
    Replevin for fraud — Chattels may be retaken by the true owner so long as they can be identified — Their description in the complaint — Motion to dismiss, when premature — Bona fide purchaser and burden of proof — A liability too contingent to be provable in bankruptcy.
    A complaint in an action of replevin, brought upon the ground that title to the chattels sold never passed to the defendants because of their fraud, properly and sufficiently describes the chattels where it states them as “ 373 2-8 yards of cloth, whether manufactured or unmanufactured or in process of manufacture, but capable of identification ”.
    If property can be identified in the hands of a wrongdoer the true owner may replevy it although it no longer remains in its original form.
    The same particularity of description of the chattels in suit is not required in the complaint in replevin as is necessary in the affidavit to be delivered to the sheriff.
    Where a motion to dismiss the complaint, on the ground that it states no cause of action and that the opening of the plaintiff’s counsel discloses none, has been denied, and the deficiency is thereafter supplied by the plaintiff’s proof, there is no error available to the defendant in the refusal to dismiss the complaint.
    Where the plaintiff vendor charges fraud against both of the defendants in that the one, who in the first instance fraudulently obtained or purchased the chattels from the vendor, thereafter fraudulently and as a part of. the scheme sold them to the other defendant, the latter, the sole appellant here, in order to hold them as against the plaintiff, must affirmatively show himself to have been' a dona fide purchaser of them for value and without notice at the time when the purchasing defendant transferred them to him.
    A liability to the plaintiff, established by his recovery of judgment in his action of replevin, arising out of an undertaking given the sheriff by the appellant defendant, as principal, in order to procure the return of the chattels replevied, and executed in the form required by Code C. P., § 1704, subd. 2, is a liability too contingent to be provable as a debt by the plaintiff, as a creditor, in the defendant’s voluntary proceedings to have himself declared a bankrupt, and therefore his discharge, pending the replevin action, cannot constitute a defense to that action.
    Clemmons v. Brinn, 35 Misc. Rep. 844, affirmed.
    Appeals by the defendant Isaac Brinn from an affirmance by the General Term of the City Court of the city of ¡New York of a judgment in favor of the plaintiff and of an order denying a motion for a new trial.
    
      The undertaking given to the sheriff hy Isaac Brinn, in order to procure return of the chattels replevied, was in the form required by Code C. P., § 1704, subd. 2.
    Levy & Unger (Charles Haldane, of counsel), for appellant.
    Abraham A. Joseph, for respondent.
   McAdam, J.

The action is in replevin to recover the possession of 373 2-8 yards of cloth, whether manufactured or unmanufactured or in process of manufacture, but capable of identification.” This is allowable, for the action was founded upon the plaintiff’s right of property m the goods which never passed to the defendants, on account of their fraud. If a man, in such case, puts a new shape on my matter, that he may by this means rob me of it, he neither gains any right over the matter by his act, nor can he demand of me any reward for labor, any more than the thief who digs through my walls can claim to be paid for his trouble in making a new door to my house ” (Puffendorf, Law of Nature, book 4, chap. 7, § 10); or, as explained by Justinian in his Institutes (Digest Liber 10, tit. 4, § 12), “ If a man make wine with my grapes, oil of my olives, or garments with my wool, knowing they are not his own, he shall be compelled by action, to produce the wine, oil, or garments.” It is not essential that the property should remain in the original form in order to support replevin, provided it can be identified Wingate v. Smith, 20 Maine, 287; Gray v. Parker, 36 Mo. 165. There seems to have been no trouble identifying the property in this instance, for it was seized under the writ and counter-bonded by the defendant.

Notwithstanding this, the defendant upon the trial for the first time claimed that the property had not been sufficiently described in the complaint and cited Devoe v. Selig, 25 Misc. Rep. 411; Springfield Met. Casket Co. v. Wielar, 26 id. 863, and Schwietering v. Rothschild, 26 App. Div. 614. But, in these cases, the objection was taken by motions to set aside the requisitions upon the ground that they did not comply with section 1695 of the Code of Civil Procedure, which requires that “ The affidavit, to be delivered to the sheriff * * * must particularly describe the chattel to be replevied.” There is no such provision respecting the complaint, which is required to contain nothing more than A plain and concise statement of the facts, constituting each cause of action, without unnecessary repetition.” Code Civ. Pro., § 481, subd. 2. The complaint contains facts sufficient to meet all legal requirements, though open, perhaps, to a motion to make it more definite and certain.

The next point urged by the appellant is that the opening of the plaintiff’s counsel does not disclose a sufficient cause of action. As this motion was denied, any deficiency in the statement of counsel was supplied by the evidence subsequently offered, and this cured any possible error in the ruling. Moskowitz v. Hornberger, 20 Misc. Rep. 558; Baylies Tr. Pr. (2d ed.) 315.

Upon the main ground involved, we agree with the General Term of the court below, that “ fraud is the essence of the case at bar, and it is upon this ground that the plaintiff seeks to rescind a contract of sale, and to recover his property or its value.” The contract was made with the defendant Pinstein, and the goods were delivered to her by the plaintiff. She thereafter made a sale to Brinn of the property and delivered it to him. This sale was also attacked by the plaintiff as fraudulent, and as part of the original scheme by which the property was obtained from him. The court charged the jury that, if they believed that the defendant Pinstein was guilty of fraud, then the only person, who could hold the goods from the plaintiff, was a purchaser in good faith and for value paid at the time of the transfer and that the burden of proving that Brinn was such a purchaser was on him. The latter portion of this charge was excepted to, but we find no error in it. Mather v. Freelove, 3 N. Y. St. Rep. 424; Schelley v. Diehl, 13 Wkly. Dig. 228; Patridge v. Rubin, 6 N. Y. Supp. 657.

As a bar to the action,. the defendant Brinn pleaded and put in evidence his discharge in bankruptcy, dated October 18, 1899, by which he was discharged from all his provable debts existing July 19, 1899. On October 31, 1894, said defendant with two sureties gave-, a bond, and reclaimed the goods replevied in this action; and the judgment herein in favor of the plaintiff was entered February 20, 1901. Irrespective of the question whether the plaintiff’s claim was scheduled by the bankrupt, we think the defendant Brinn’s liability was such a contingent one that it was not a provable debt within the meaning of the present Bankruptcy Act. Coll. Bank. 381. Goding v. Rosenthal, Mass. Sup. Jud. Ct., Oct. 18, 1901; Morgan v. Wordell, 59 N. E. Rep. (Mass.)1037.

The position assumed and asserted by the defendant from beginning to end was that the plaintiff had wrongfully joined him, as a party to the action, for, as to him, there was no cause of action whatever. For these reasons the defendant’s request to charge the jury that, by reason of the discharge in bankruptcy, a verdict for a sum of money could not be returned against him was properly refused.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment affirmed, with costs.  