
    BANFIELD v. HAEGER.
    
      N. Y. Superior Court, General Term ;
    
    
      November, 1879.
    Replevin.—Claim and Delivery.—Pleading.—Warehouse-keeper. —Indemnity. —Interpleader. —Trespass. — Conversion. —Trover.
    The objection, that a complaint in an action to recover specific personal property alleges a trespass and a conversion, should be taken before trial; and if not so taken, and plaintiff shows a right to possession, the allegations of trespass and conversion may be disregarded as surplusage.
    A warehouse-keeper is not entitled to require a bond of indemnity from the true owner, as a condition of delivering' the property, on the ground that adverse claims to it are made. The remedy is an interpleader.
    
    Appeal by plaintiff from an order dismissing the complaint and judgment thereon.
    This action was brought by Frederick Banfield against Annie C. Haeger, to recover possession of certain personal property.
    The plaintiff in his complaint alleged that he was 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 demanded the delivery of said property, with $200 damages for its detention, besides the costs of this action.
    
    The answer denied the allegations of the complaint, and alleged 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 notified 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, and the plaintiff duly excepted, and appealed from the order and the judgment of dismissal.
    
      Stephen B. Brague, for plaintiff, appellant.
    The various actions for injuries to personal property have been modified from time to time by acts of the legislature, and by j udicial construction. The writ of replevin originally issued out of chancery (Bac. Abr., Replevin, E). There was the common-law writ and the writ by act of parliament {Id. A, B). It came to be extended to the recovery of property without regard to the manner in which it came into the possession of the defendant {Id. A, citing Lord Redesdale ; Shannon v. Shannon, 1 Shoales & L. 324; and Dore v. Wilkinson, 2 Stark. 287). Trespass could only be brought when the injury was the result of an unlawful act, or when a person in the performance of a lawful act exceeded his authority, rendering him a trespasser ab initio (Bac. Abr. Trespass, B). Most of the actions for trespass were for injury to the person, or real property (Harrison’s Dig.) In some cases the remedy of trespass or trover was concurrent; in others, trespass only would lie. In the case of an injury, without a conversion or destruction of the property, trespass only would lie (Bushel v. Miller, 1 Strange, 128; Fouldes v. Willoughby, 8 Mees. & W. 540). In case of the unlawful taking, trespass only would lie. In case of a lawful holding at first and a conversion, trover only would lie. In case of an unlawful taking and a conversion, the remedies were concurrent. Replevin to recover the identical property, trespass or trover for damages (2 Saunders Plead. pt. 2, p. 1138; 1 Tidd. Pr. 10; Bac. Abr. Trover, B.; Perkins v. Smith, Sayer, 41; Spraights v. Hawley, 39 N. Y. 441; Richardson v. Atkinson, 1 Strange, 576 ; Deuch v. Walker, 14 Mass. 499; Hartop v. Hoare, 2 Strange, 1187; Hoare v. Parker, 2 Term R. 376). If goods stolen are pawned, the owner may maintain trover against the pawnbroker (Wilkinson v. King, 2 Camp. 336, and note ; Packer v. Gillies, Ib.). Plaintiff may recover stolen property from purchaser in trover (Towne v. Collins, 14 Mass. 499). Auctioneer held liable for selling a hired piano (Loeschman v. Martin, 2 Stark. 311). Agent held liable for conversion (Boyce v. Brockway, 31 N. Y. 490. See also Pease v. Smith, 61 N. Y. 477; Parker v. Patrick, 5 Term R. 175 ; Mowrey v. Walsh, 8 Cow. 238 ; Ely v. Ehle, 3 N. Y. 506 ; Tallman v. Twick, 26 Barb. 167). As between the owner and the fraudulent purchaser, the owner can recover the property, or damages (Ladd v. Moon, 3 Sandf. 589 ; Pillsbury v. Webb, 33 Barb. 214). Claim and delivery appears to be a substitute for the actions of replevin, trespass or trover. Defendant came into possession wrongfully, and no demand before suit was necessary (Farrington v. Payne, 15 Johns. 431; Pillsbury v. Webb, 33 Barb. 213 ; Pease v. Smith, supra; Hoffman v. Carow, 22 Wend. 285). Testimony should have been allowed to show that all the facts and circumstances were shown to have been presented to the defendant (Wilson v. Cook, 3 E. D. Smith, 252 ; Carroll v. Mix, 51 Barb. 212). 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).
    
      James M. Bowers {Platt, Gerard & Bowers, attorneys), for defendant, respondent.
    The course the defendant pursued was the only safe one for a ware-housekeeper, and is sustained by Ball v. Liney (48 N. Y. 6). The mere existence of the mortgage did not change 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).
    
      
       See Tauton v. Groh, 4 Abb. Ct. App. Dec. 358; Code Civ. Pro. §§ 453, 820.
    
    
      
       The allegations of the complaint were as follows:
      “1. That plaintiff is the owner, and entitled to the immediate possession of the following described property, of the value of seven hundred dollars. [Here followed a list of the articles.]
      “2. That defendant became possessed of said property wrongfully, and plaintiff duly demanded the delivery of said property to him, which was refused, and defendant converted the same to her own use.
      “ Wherefore, plaintiff demands the delivery of said property, with two hundred dollars damages for its detention, besides the costs of this action.”
    
   Curtis, Ch. J.

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 maybe 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 (Schofield v. Whitelegge, 49 N. Y. 260).

The proceedings in the present action appear, though 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 in 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 instance 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, and 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, considering 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 sitting1 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 hourt of appeals, and approved in Scofield v. Whitelegge (48 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.  