109 N.Y.S. 490 | N.Y. App. Div. | 1908
The action is in replevin, to recover certain personal property ' consisting of household goods, furniture and furnishings. All of the property not owned by plaintiff was formerly, owned by her husband, Ignatz Boskowitz. On the 7tli day of June, 1906, it was in the dwelling house on premises known as No. 32 "West Seventy-second street in the city of New York owned by him which were that day conveyed by him and his wife to the defendant. ■ Ignatz Boskowitz and his wife, who is the plaintiff, had occupied the ¡iremises as a private residence for many years and continued to reside there after the conveyance and until the thirteenth day of the same month, when they sailed for Europe, leaving the property in question in the house with the consent of the defendant who was Ignatz’s brother. Ignatz Boskowitz died abroad on the twenty- ■ sixth day of December thereafter. He, however, remained a resident of this State and on the 2d day of February, 1907, his son Jesse L. Boskowitz was duly appointed administrator of his estate by the Surrogate’s Court of the county of New York, his mother apparently having renounced in his favor. It is conceded that on the 12th day of June, 1906, the decedent signed and addressed a letter to the plaintiff jmrporting to make her a present of all of the personal property so left in the house No. 32 West Seventy-second street which did not already belong to her. The plaintiff claims that the letter was delivered to her and that she thereby acquired title to the property. The defendant makes no claim to any of the property, excepting one painting, entitled, “ Paying .Toll,” by Myer von Bremen, which he claims was given to him by the decedent on t]i§ game day that the letter wag written to the plaintiff j hit he
The property which the defendant asserts belongs to Florence Boskowitz was in the front bedroom on the third floor, which for many years had been occupied by her. It appears that she claimed title to this property by gift from her father, and on the 15th day of June, 1906, a few days after her parents left, for Europe, she moved it out as her own. Her ownership thereof is now.conceded by the plaintiff in an affidavit presented in opposition to the motion. ..■There was no necessity, therefore, of bringing Florence in as a party defendant. She has the property and plaintiff waives all claim thereto and concedes.her ownership. The court should have ordered the complaint amended so as to omit the property which Florence removed.
We are also of opinion that the learned court erred in directing that the administrator be joined. There is no evidence that the administrator asserted to the defendant, who was in possession- of the property, any claim thereto until after the defendant drew the matter to his attention. On the record before us the defendant is in the position of having instigated the claim made by the administrator, and the inference is fairly warranted that the claim has been presented through collusion between him and the administrator for the purpose of depriving the plaintiff of the immediate possession of the property. It appears that plaintiff duly notified the defendant of her claim to the property under the letter from the decedent bearing date the 12th day of June, 1906, and he at first fully acknowledged her right and title and promised to deliver the property to her, and on his suggestion she indorsed on a copy of tile letter an authorization to him to deliver the property to the Manhattan Storage Warehouse Company. The defendant, instead of acting upon this authority and keeping his promise, apparent!y pregen ted the letter to the administrator who thereafter by a letter
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion to bring in the administrator of- Ignatz Boskowitz as a party defendant denied, and motion to bring in Florence Boskowitz' denied, without costs, upon the ground that it. appears by the affidavit of the plaintiff read in opposition to the motion that she concedes that her daughter Florence owned the chattels described in. Schedule A annexed to the complaint as being in the front bedroom on the third floor, viz., one chiffonnier, one table, one bed, one electric lamp, three chairs and three pictures, and upon the trial hereof will make no claim against the defendant therefor, or for the value thereof, or for damage thereto.
Ingbaham, Clabke, Houghton and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motions denied as stated in opinion.