
    R. D. Livingston, Receiver, v. F. Stœssel, and Mary, his Wife.
    1. In an action to recover the possession of personal property, brought by one who has been appointed, on proceedings supplementary to execution, a receiver of the property of a judgment debtor; and brought against such debtor and his wife on an allegation, that the property in question is the property of the plaintiff and is wrongfully detained from his possession by the defendants; the plaintiff cannot recover on merely proving that the property was demanded of the wife before suit brought, and that she made answer, that her husband “ did not own anything.”
    2. A married woman is not, as such, the agent of her husband, to respond to or act upon a demand made upon her for the delivery of property, which, a plaintiff may legally require the husband to deliver to him.
    3. Her omission to comply with such a demand, or to act in reference to it; or an answer by her to such a demand that her husband does not own anything, will not subject him or her to an action to recover the possession of such property, or to recover damages for its wrongful detention.
    4. When a person, who has been appointed a receiver of the property of a judgment debtor, demands the delivery to him of personal property, as being the property of such debtor, if the demand is sufficient in other respects, the objection cannot be taken at the trial that he did not exhibit, at the time of such demand, the evidence of his appointment as receiver, if the refusal to deliver, was not placed on that ground.
    (Before Bosworth, Woodruff and Pierrepont, J. J.)
    Heard, February 17;
    decided, April 17, 1858.
    This action comes before the Court, on a verdict for the plaintiff, taken subject to the opinion of the Court at General Term. It was tried in Nov., 1856, before Ch. J. Oakley and a jury.
    The complaint merely avers, “that the defendants have become possessed of and wrongfully detain from the plaintiff, the following goods and chattels of the plaintiff ” (describing them), “ of the value of $600, as he believes:” that the plaintiff on the first of Nov., 1855, by an order of this court, “was appointed receiver of all the property of the said Ferdinand Stcesseland prays “that the defendants maybe adjudged to deliver to the plaintiff the said goods and chattels,” and pay $600 damages for the detention thereof.
    
      The answer of Ferdinand Stoessel, simply “ denies each and every allegation, averment and statement contained in said complaint.” The answer of Mary Stoessel is in the same form, and in addition thereto, avers “that the personal property mentioned and described in said complaint,” is her separate property, and was not and'is not the property of Ferdinand Stoessel, and that she is entitled to the possession thereof.
    The plaintiff served a reply to the answer of Mary Stoessel, in which he denies that the property is her separate property, or that she is entitled to the possession thereof, and avers that, when this suit was commenced, the property belonged to Ferdinand Stoessel, and was then in his possession.
    At the trial, the plaintiff proved the recovery of a judgment in this court, on the 80th of August, 1855, by Eleazer Ayres, against Lewis Horn and Ferdinand Stoessel, for $299.66. Also an order supplementary to execution in that action, directing Ferdinand Stoessel to appear and be examined concerning his property, dated the 3d of October, 1855. Also “the examination” of said F. Stoessel under said order (but its contents do not appear in the printed case). Also an order in those proceedings, dated Nov. 1, 1855, appointing the plaintiff “receiver of all the debts, property, equitable interests, rights and things in action of Ferdinand Stoessel, the above named judgment debtor.”
    Also a report, dated Nov. 15, 1855, made by the plaintiff as such receiver, “to the Superior Court of the city of New York,” to the effect, that the plaintiff had demanded of F. Stoessel, personally, “all his property,” &c., which he refused to deliver, alleging that he had none; which report also states that he had a watch and chain; that these were specially demanded, and that he refused to deliver them to the plaintiff.
    Also an order of the Court at Special Term, dated Nov. 21, 1855, reciting the reading and filing of such report, and its contents; and that if appears by the “written testimony,” of said Stoessel, filed, &c., that his wife “ claims to have some title and interest in and to the property of the said Ferdinand Stoessel,” which order declares that the plaintiff as such receiver, is authorized to commence an action “ against the said Ferdinand Stoessel, and to join his said wife as a defendant with him in said action, for the purpose of recovering the possession of the personal property of the said defendant, Ferdinand Stoessel, owned by him at the time the same became subject to the lien of the execution, issued to the sheriff of the city and county of New York, under the judgment in the above entitled action.”
    '(The property described in the complaint is “ one billiard table, one copper boiler, one cooking range, gas fixtures, one iron safe, one counter, one cigar case, six dozen arm chairs, three dozen silver or silver plated forks, four dozen soup plates, and three dozen dinner plates.) The only evidence as to any deman d, made by the receiver, for a delivery of the property, before suit brought, was given by Thomas Ryan, who testified thus:
    “I know Mr. Livingston the plaintiff in this action; I went with him to Mr. Stoessel’s house about this time a year ago or a little later; about the 16th or 17th of November last; we went to Greenwich street, No. 52; Mr. Livingston demanded billiard table, watch and copper boiler; Mr. Livingston had a paper; I did not take any notice of it; I saw a billiard table there in the back part of the place; we went into a bar-room; there were tables and chairs there; a lady was there behind the bar, and she said Mr. Stoessel did not own anything; she was a middle-aged woman; I think it was Mrs. Stoessel; I have seen her in the court room to-day; we did not see Mr. Stoessel; we went over where they said the copper boiler was, and it was not there; I don’t know whether Mr. Livingston inquired for Mr. Stoessel or not; I did not; I did not hear anything said about his being receiver; he went in there and demanded the billiard table and copper boiler; I did not pay any attention to what he said.
    “Witness was not cross-examined.”
    It was further proved that Mary Stoessel, prior to her marriage to Ferdinand Stoessel, carried on business at 52 Greenwich ‘ street, and had a sign up, which was “ Waelty’s Widow.” She married F. Stoessel in the fall of 1853, and kept up the sign till May 4th, 1855, when it was changed to “M. Stoessel,” or “Mrs. Stoessel.”
    The plaintiff’s counsel, before resting, “ moved the Court to be permitted to amend his complaint and allege the appointment of the plaintiff as receiver of the property of the defendant Ferdinand Stoessel, which motion the defendants’ counsel opposed, the Court, however, permitted the amendment, and defendants’ counsel excepted.”
    When the plaintiff rested, the defendants moved for a non-suit, which motion was denied and they excepted. . The defendants gave evidence tending to show that Mrs. Stcessel had some property of her own, which was left to her by her former husband; that the billiard table in question was sold to her on the 14th or 15th of August, 1855 ; that she paid for it $50 cash and gave her three notes for the balance, viz.: $40 at one month, $85 at two months, and $85 at four months; and that these notes were paid when due; but how, or by whom, or with whose moneys, did not appear.
    The printed case concludes thus:
    “ The ‘testimony was here closed, and the defendants’ counsel moved-that the complaint be dismissed for the following reasons, viz.:
    “I. That no legal demand was made upon either of the defendants by the plaintiff, inasmuch as it was incumben^ upon him to disclose his character and authority when making his demand.
    “H. A demand made upon the wife is not sufficient to charge the husband with liability, in an action for detention, &c., in case of refusal by the wife to deliver, &c.
    “ The motion was denied by the court, and defendants’ counsel excepted.
    
    ‘ ‘ The' defendants’ counsel then summed up for the defence, and Mr. Bliss closed for plaintiff.
    “ Whereupon his Honor Judge Oakley instructed the jury that by the statute of 1848, a wife is not authorized to become a sole trader—that she cannot make contracts in her own name aside from her husband; and farther, a question has been raised in this case deserving of consideration hereafter—the plaintiff was' appointed receiver, and became invested with all rights, &c., as such. He went and demanded certain property of Mrs. Stoessel, the wife of the defendant (F. Stoessel) who declared that the property demanded did not belong to her husband (said Stcessel).
    “ There is no evidence that the plaintiff disclosed his character or authority when making his demand. This question is here involved, and will be decided hereafter. As it is, I think, the verdict should be for the plaintiff.
    “ Whereupon the jury retired and soon thereafter returned into court with a verdict for the plaintiff, assessing his damages at $150, subject, however, to the opinion of the Court at General Term.”
    The case was submitted, on printed points.
    
      A. K. Hadley, for the plaintiff.
    The only substantial question reserved for the opinion of the court in this action relates to the necessity and sufficiency of the plaintiff’s demand from defendants, of the property in question, as to which we say:
    I. In relation to the wife, certainly no demand was necessary. Her possession, claiming as she did to hold the property adversely to her husband, as well as to the plaintiff, was a wrongful possession. (Cowen’s Treatise, 302, and cases there cited.) And such possession has always been held to obviate the necessity of a demand.
    H. If the possession of the wife was not wrongful, then it was the possession of the husband. She acted as his. agent, and a demand from her, when in possession, was sufficient. The plaintiff’s right to take possession of the property was absolute and immediate, wherever he might find it. He was under no obligation to demand from, or in any manner to communicate with, any person other than the party in actual possession.
    The manner of the demand, stated by Eyan, was such as to warrant the inference that he disclosed the character in which he claimed. The answer was not, that ayou have no right to the property,” but “she said Mr. /Stcessel did not own any thing” and this was the real issue.
    HI. But there was abundant evidence of a demand of, and refusal by, the defendant Stcessel.
    I. The receiver’s report, which was read in evidence, and without objection {i. e., no objection was made after the complaint was amended), proves the demand and the refusal too— based not upon the ground, that the plaintiff showed no right to the property, but “alleging that he had no property, debts, funds, securities, or equitable interests.” The refusal was “to deliver to the receiver,” not to R. D. Livingston — from which the inference is authorized, that the plaintiff’s character and right were disclosed.
    2. The mere demand and refusal is all the law requires, in cases where demand is necessary. It was never requisite for the party demanding to prove or demonstrate his right to demand, unless the refusal is based upon the absence of such right. The case is analogous to that of a tender of bank bills instead of specie—which has always been held a competent tender—where the refusal to accept has been placed upon other and distinct grounds. (22 Wend., 178; 1 John. Cases, 406; 1st Esp. R., 31; 6 Wend., 603; 8 J. R., 445.)
    IV". It is only material to the question of costs, to inquire whether any demand whatever was ever made before action. Where a party is clearly entitled to the possession of property, or to the payment of money, the commencement of the action is a sufficient demand. The court has only to inquire, whether or not, at the time of action, the plaintiff had a right to the property or thing demanded; if he had, no preliminary demand was necessary, as he was under no obligation to ask for, before taking-possession of, the property he had a right to.
    This remark applies, of course, to the recovery of the thing itself, and not to damages for detention or costs of action. (1 Cow. T., 187, 188; Cro. Cas., 384; 3 Salk., 308.
    
      Charles A. May, for the defendants.
    I. The Court erred in allowing the plaintiff to amend his complaint by alleging the appointment of the plaintiff ak receiver of the property of the defendant, Ferdinand Stcessel.
    1. Because it substantially changed the cause of action.
    2. Such allegation of fact constituted a new and distinct cause of action. (Peck v. Ward, 3 Duer, 647.)
    II. The Court erred in not granting the defendants’ 'motion for judgment of nonsuit or dismissal of the complaint.
    1. Because the amendment as made is insufficient; the whole proceedings relating to the appointment of receiver, and also the permission to sue, ought to have been set out in the complaint in full. (16 Wend., 410 ; Beach v. King, 17 Wend., 197; Gillett v. Fairchild, 4 Denio, 80; Chautaugue County Bank v. White, 2 Seld., 236; White v. Jay, 3 Kern., 83.)
    2. There is not sufficient evidence to prove the case on the part of plaintiff.
    3. There was no evidence of demand upon either of the defendants for the specific articles mentioned in the complaint.
    4. When plaintiff made the demand of the property of defendants, he failed to disclose the character in which he made the demand; for aught we know they might have given it up.
    5. There is no evidence even to raise a presumption of ownership of the property in the defendant, Ferdinand Stcessel, nor was any possession thereof by or in him shown.
    6. A refusal to deliver the property'cannot be inferred from the language of Mrs. Stœssel. (4 Hill, 13 ; 1 Cowen, 322.)
    III. The verdict should be set aside, and the complaint dismissed, and judgment rendered for defendants.
    1. Because the verdict is clearly against the weight of evidence, and in fact there is no evidence whatever against said defendant, Mary Stcessel.
    2. The only evidence tending in any manner to show a demand, is of a demand upon the wife, and this pretended demand as proved would certainly not charge the husband in this action.
    3. The demand, if proved, was not a legal demand, as the plaintiff did not disclose his character and authority when he made his demand.
    IY. By the law of 1848, and amendments, a married woman may have and acquire separate property. In this case the property was bought by Mrs. Mary Stoessel out of her own resources and means, and thus became her separate property; it having been conclusively shown that the defendant, Ferdinand Stcessel, had no means by which to acquire the property; and her separate property is protected against seizure for debts of her husband. (Merritt v. Lyon & Tyler, 3 Barb., 110).
   By the Court.

Bosworth, J.

The case submitted is so meagre in its details that its contents do not very clearly show what the evidence given at the trial fairly tended to prove. It is, perhaps, just to say that it appears F. Stcessel had been examined as to his property before the plaintiff was appointed a receiver of it. That examination was read, but it does not appear in the case, and its contents are unknown to us. The order of the 21st of Kov., 1855, states that it appears by such examination or “testimony,” that “the wife of the said Ferdinand Stoessel claims to have some interest and title in and to the property of said Ferdinand Stoessel.” The order, then, gives authority to the receiver to bring an action against F. Stoessel and make the wife of the latter a party to it, in order to recover the possession of personal property belonging to F. Stoessel at a time named in the order. The answer of Stoessel’s wife alleges that the property described in the complaint was her separate property. The reply to that answer avers that the property belonged to F. Stoessel, and was in his possession when this action was commenced.

These circumstances, in connection with the proceedings at the trial, indicate that the only grounds arising upon undisputed facts, which were specially relied upon to defeat a. recovery were those on which a dismissal of the complaint was moved, when the testimony was closed. They were:

First. That no legal demand was made of either defendant, because the plaintiff did not disclose his character and authority when he made it; and
Second. That a demand upon the wife, and a refusal by her to deliver, is not sufficient to maintain an action against the husband for a wrongful detention of property so demanded.

So much of the charge to the jury as the case contains, states the first question as the one which would arise for subsequent consideration. This must be understood to mean that all questions upon which the judge was requested to rule, except that last named were disposed of at the trial. The charge, whatever it was, was not excepted to, and must be presumed to have been correct as to all questions affecting the merits, other than those as to which the charge, as made, is contained in the case.

Ferdinand Stcessel knew that the plaintiff in the action in which the receiver was appointed, was pursuing the property mentioned in the complaint as being the husband’s. When demanded of his wife she did not inquire as to the authority or right to demand possession, but placed her refusal on the ground that “Mr. Stoessel did not own any” of it. This indicates that she knew it was demanded as being his. The terms and grounds of the refusal import that she knew the receiver had a right to be allowed to take possession of the property provided it belonged to F. Stcessel. Had she refused on the ground that the plaintiff did not show any evidence of a right, or authority to demand it, that difficulty could have been obviated at the time.

Therefore, so far as the mere objection that such authority was not disclosed at the time the demand was made, stands in the way of a recovery, it is sufficient to say that it cannot be raised, for the first time, at the trial; the refusal to deliver (if there was such a refusal) having been placed on a totally different ground.

But a dismissal of the complaint was also moved on the ground that a demand on the wife is not sufficient to charge the husband with liability in an action for a wrongful detention of the property so demanded in case she refuses to deliver it. The motion was denied, and the defendants’ counsel excepted. The judge, in his charge, states as the truth of the transaction, that the property was demanded of the wife, who declared that it did not belong to her husband.

If the jury are to be deemed to have foiind that the property belonged to the husband, then it follows that it was in his possession when demanded. There can be no presumption that the wife had possession of it, and that it was out of the husband’s possession. Being the husband’s property the receiver might have taken it, and the wife could not rightfully have obstructed the receiver while properly reducing it to possession.

I know of no principle which makes the wife, merely as such, an agent of the husband to respond to demands that may be made on him to deliver property in his possession to one having a right to demand it, so as to make her refusal to give it up the husband’s refusal, and such a refusal as will, subject either him or her to an action for a wrongful detention of the property. If the demand is made on her as being the husband’s agent, her refusal to comply with it is not a wrong which will subject her to an action personally. It will not subject the husband to an action, because the mere fact that she was his wife does not give her authority to speak for him in such a case and make him responsible for her refusal to act as such agent.

If the demand was made on her, because she claimed to be owner, or to have an interest in the property, then there is no ground for pretending that her answer to the demand was the husband’s act; or that it would affect him as if the demand had been made of him, and he had refused to give possession.

The property could have been taken arid sold on the execution, if it was the property of the husband. Instead of pursuing that course, the execution is returned and the return states that he had no leviable property. On proceedings supplementary to execution, the husband is examined, and, so far as we can infer from the evidence disclosed by the case, he stated that the property was not his, but that it belonged to his wife. A receiver is appointed, who brings an action against husband and wife, to recover possession, on the ground that both wrongfully detain it. Ho order directing the husband to deliver it to the receiver is shown, nor any demand of the property made by the receiver upon the husband is proved. He, therefore, does hot appear to have refused to allow the receiver to take possession, or to have interfered with the efforts of the latter to obtain possession.

A demand of the property is made of the wife, who makes answer that “ Mr. Stoessel did not own any thing.” On that this action is brought. Such evidence is insufficient to establish that either of the defendants “wrongfully detained” the property from the plaintiff, in such sense, as to subject them to “an action to recover the possession of personal property.” Such an action is a substitute for the action of replevin. Code, §§ 206, 253, 277, 289; sub. 4, and 305; sub. 4.

I think it would have been better to have stated more of the actual facts in the complaint, and to have prayed that the property be declared to belong to the husband, and that possession of it be given to the receiver.

But without intending to intimate that an action like the present cannot be maintained, on proof, of the necessary facts, it is sufficient to say that no such evidence of a' wrongful detention was given at the trial as entitled the plaintiff to a verdict.

The verdict must be set aside and a new trial granted, with costs to abide the event.  