
    JOHN S. SIMMONS and Another, Plaintiffs and Respondents, v. CHARLES V. LYONS, Defendant and Appellant.
    I. CLAIM AND DELIVERY—REPLEVIN.
    1. Complaint.
    1. Avei'ment of ownership.—■ What sufficient.
    
    
      a. An averment that the goods, etc., were “the goods of the plaintiff,” is (Scofield ti. Whittelegge, 33 N. T. Sup. Ot. Rep. p. 179 distinguished.)
    2. Averment of demand and refusal.
    
    
      a. Not necessary where the action is for a wrongful taking as well as a wrongful detention.
    
      b. What is a sufficient amerment of.
    
    1. An averment that the property is wrongfully detained is.
    II. Amendment on Trial.
    1. An amendment to a complaint in an action of claim and delivery which avers that “ defendant became possessed of and wrongfully detains,” etc., by inserting between the words “possessed of” and the words “and wrongfully," the words “by forcibly taking from the plaintiffs,” is within the power and discretion of the court, and ERROR cannot be assigned for the allowance of such an amendment.
    HI. Reopening Case—Trial.
    The reopening of a. case to let in additional, proof in support of the plaintiff’s case, rests wholly in the discretion of the court, and is not the subject of an exception.
    
    Before Barbour, Ch. J., Monell and Van Vorst, JJ.
    
      Decided May 3, 1873.
    Appeal from judgment and order denying motion for a new trial.
    The action was to recover the possession of personal property. The complaint alleged that the defendant had become possessed of, and wrongfully detained, the following goods and chattels “ of the plaintiff s,” that is to say, etc. The answer denied the plaintiffs’ ownership of the property, and alleged that they were taken Tby the defendant, as one of the marshals of the city of Mew York, under an execution issued upon a judgment against one W. H. Snyder, who, it was alleged, was the owner of the goods.
    The action was tried "by the court and a jury. The plaintiffs moved to amend the complaint Tby adding after the words £‘had "become possessed of,” the words “by forcibly talcing from the plaintiffs.” The motion was granted, and the defendant excepted.
    The defendant’s counsel moved to dismiss the complaint, upon the ground that the complaint stated no cause of action, and that the complaint was defective, there being no allegation of ownership or possession, or right of possession, in the plaintiffs, or that the property claimed in the complaint had been wrongfully taken, or that the same had been demanded from the defendant before suit.
    The motion was denied, and the defendant excepted.
    It was proved that Snyder had sold and delivered the property, which consisted of the stock and fixtures of a retail liquor store, to Sanger & Co., on the 30th of December, 1871, who on the 11th of January, 1873, had sold the same property to the plaintiffs.
    It was claimed that the sale was fraudulent as to the creditors of Snyder.
    The plaintiffs gave some evidence of the value of the property, showing it to be about $900. It brought at the marshal’s auction sale only $400.
    When the plaintiffs rested, the defendant moved to strike out the evidence of value, on the ground that the witness, on his cross-examination, had testified that he knew nothing of his own knowledge of the value, but only from information from others.
    The motion was denied, and the defendant excepted.
    There was an objection made to reopening the case after the defendant had rested, to let in further proof by the plaintiffs of value; and also upon the question of fraud. These objections were overruled, and the defendant excepted.
    The jury found for the plaintiffs.
    A motion was made at Special Term for a new trial, and denied.
    The defendant appealed from the judgment and order.
    The appeals were submitted to the General Term on printed points, without oral argument.
    
      Charles S. Spencer, attorney, and of counsel for appellant,
    urged:
    I. The motion to dismiss plaintiffs’ complaint, made by defendant’s attorney, should have been granted.
    The omission to allege ownership or possession was fatal (Clark v. Skinner, 20 Johns. 465; McCurdy v. Brown, 1 Duer, 101; Dodworth v. Jones, 4 Duer, 201).
    A demand was necessary and should have ‘been averred. This property was seized by the defendant, as marshal, and therefore in good faith, all of which plaintiff well knew.
    
      Albert Roberts, attorney, and of counsel for respondents,
    urged:
    I. The motion to dismiss the complaint was properly denied.
    1. The allegation that the goods were the goods of the plaintiffs is a sufficient allegation of ownership (Childs v. Hart, 7 Barb. 370).
    2. The defendant, by making the motion, admitted all the allegations of the complaint; therefore, he admitted that he “ unjustly detained” the property.
    
    
      a. Such an allegation is an allegation of fact (Covell v. Hill, 6 N. Y. 381; Decker v. Matthews, 12 Id. 324).
    3. The allowance of the motion to amend the complaint was discretionary with the court, and is not the subject of exception nor appeal (Code, section 173; Hendricks v. Decker, 35 Barb. 298; Brown v. McCune, 5 Sand. 224).
    
      a. The insertion of the words: “"by forcibly taking from the plaintiffs,” simply made the complaint more definite and certain.
    
      b. The allegation that defendant has taken the property of plaintiffs, is equivalent to an allegation of a wrongful taking (Childs v. Hart, supra).
    
    4. But any defect in the complaint was supplied by the proofs on the trial of a wrongful taking and a wrongful detention ; the evidence being that the defendant was notified when he levied that it was plaintiffs'1 property, also a demand was proved. Loundsbury v. Purdy, 18 N. Y. 520; Emery v. Pease, 20 Id. 62).
   By the Court.—Monell, J.

The complaint was sufficient in the allegation of ownership of the property. It was averred that they were the goods “ of the plaintiff,” which was in legal effect an averment that the goods were owned by the plaintiff. It followed the form of averment in the late declaration in replevin, where it was merely alleged to be the property of the plaintiff (3 Burrill Pr. 296), or the goods of the plaintiff (Chit. Pl.). This case differs from Scofield v. Whitelegge (33 N. Y. Supr. Ct. R. p. 179). In that case there was no averment whatever of ownership. But the Court of Appeals, in affirming Scofield v. Whitelegge (49 N. Y. R. 259; S. C. 12 Abb. [N. S.] 320), approving of Patterson v. Adams (7 Hill. 126), fully establishes the sufficiency of a pleading which alleges the goods to be “ of the plaintiff” (p. 324). This question has been more fully examined in Van der Minden v. Elsas, decided at the present term, where the question arose on demurrer to a complaint averring that the goods were “the goods of the plaintiff,” as in this case, and the complaint was held to be sufficient.

This action was for the wrongful detention of the goods, and the original complaint alleged only a wrongful detention, "but the court allowed it to "be amended by the insertion of an averment that the taking was also tortious. It is insisted, however, that there should also have been an averment of a demand before suit.

However necessary the proof of a demand and refusal before suit may be to establish a wrongful detention, it is not necessary to allege it when the action is also for a wrongful taking. In Hunter v. Hudson R. R. R. Co. (20 Barb. 493), the court went even further, and held that the averment of wrongful detention was sufficient as a pleading, and an allegation of demand and refusal was not necessary. Some earlier cases are substantially to the same effect (Fonda v. Van Horne, 15 Wend. 631; Acker v. Campbell, 23 Id. 872; Barrett v. Warren, 3 Hill, 848), the rule as stated being, that an action to recover possession of personal property lies, where formerly trespass de bonis asportatis, could be maintained (Sharp v. Whittenhall, 576). The sufficiency of the complaint in this case is also upheld by the Court of Appeals in Levin v. Bussell (42 N. Y. R. 251), where there was an allegation that the goods were “ wrongfully withheld,” etc.

In any event, however, the amendment which the court allowed by inserting in the complaint the allegation that the goods were “forcibly tabeen from the plaintiff,” would render it unnecessary to even prove a demand and refusal. Where the talcing is unlawful, an averment of demand and refusal is not required (Scofield v. Whitelegge, supra). The motion to dismiss the complaint was properly refused.

The amendment of the complaint being within the power, was also within the discretion of the court, and cannot be reviewed on appeal from the judgment (N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. R. 357).

The motion to strike out the testimony of the plaintiff on the question of value was correctly disposed of. There was enough in the evidence to go to the jury, and of its sufficiency or weight they were the exclusive judges. The witness testified to some knowledge of the value of the property, and it would have been error, I think, to have taken it from the jury.

The reopening the case to let' in more proof was a matter wholly in the discretion of the court, and, therefore, not the subject of an exception. It is always competent, and sometimes quite proper, for the judge at the trial to relax the general rale which requires a party to exhaust his evidence before resting. The rule is most salutary, and should be departed from sparingly. But its enforcement or relinquishment may be safely left with the judge at the trial.

The charge of the judge is not printed in the case, but we must assume that all the questions of fact were given to the jury. And as upon these questions the evidence was sufficiently conflicting to bring the verdict within the established rule, we cannot disturb it.

The judgment and order should be affirmed, with costs.  