13 N.Y.S. 184 | N.Y. Sup. Ct. | 1891
That this was an action of replevin there can be no doubt. The complaint was in replevin, and on the trial the plaintiff in effect admitted that such was the action. A party cannot so frame his complaint that, if he fails to recover possession of the property, he can recover damages for its conversion. Seymour v. Van Curen, 18 How. Pr. 94. The object of the action of replevin is the recovery of specific personal property. It belongs to the same general class of cases as trespass and trover, but is a possessory action, and unlike either. “In order to maintain replevin the plaintiff must show a right to have delivery of the property at the time of the commencement of the suit. The proceeding is partly in rem, and unlike trespass or trover, which seeks damages only. ” Wood v. Orser, 25 N. Y. 351. If the property •sought to be recovered by the plaintiff in this action was in his possession when it was commenced, it is difficult to perceive any ground upon which he could maintain an action to obtain that which he already possessed. In Barnett v. Selling, 70 N. Y. 496, Allen, J., said: “If the tobacco had, by any means, come to the possession of the plaintiff, the action of replevin would not lie, although trespass or trover might, for the original tortious taking or detention. Whenever the plaintiff admits the possession of property there can be no occasion for an action to,recover the possession.” That the plaintiff had the actual possession of the property in question when this action was commenced is clearly manifest. It was upon the ground that he had such possession that the court, in effect, held that, under the pleadings and evidence as they stood at the close of the trial, the complaint should be dismissed. On the trial the plaintiff proved that one of the defendants, who was a deputy-sheriff, levied upon the property in question by virtue of an execution against the plaintiff; that the plaintiff claimed that the property levied upon was exempt from levy and sale under an execution; and also proved facts showing that it was exempt. But it was also shown that after such levy was made the plaintiff executed and delivered to the deputy-sheriff who made such levy a receipt, whereby he acknowledged that he had received of such sheriff the property in question, and for value received promised to deliver the same to him when he should demand it, at Pinckney, or, in default, pay the amount of the execution, with the fees and interest thereon. The plaintiff also testified that the property in question remained in his possession. The receipt given by the plaintiff estopped him from denying that he had the possession of the property at the commencement of the action. Dezell v. Odell, 3 Hill, 215; Diossy v. Morgan, 74 N. Y. 11. The case of Clark v. Weaver, 17 Hun, 481, in no way aids the plaintiff. In that case the plaintiff gave a receipt upon the assurance that it would not prejudice his rights, and that no advantage would be taken if the property was present when wanted for sale. The sheriff afterwards came to sell it, and was informed by the plaintiff where it was. The sheriff then returned the receipt to the plaintiff, and commenced selling the property, when an action was brought to recover the possession of it. It was held that the plaintiff was not estopped from claiming title to the property. In that case the officer had resumed possession, and commenced a sale of the property. Nothing of the kind is shown in the case at bar. When this action was commenced the plaintiff was in the possession of the property, and the receipt was in full force. We think the court properly held that the plaintiff could not recover in this action upon the complaint and proof herein.
Hardin, P. J., concurs. Merwin, J., concurred on the last ground stated.