88 N.J.L. 590 | N.J. | 1916
The opinion of the court was delivered by
This was an action of replevin originally brought in the East Orange District Court, under section 119 of the District Court act (Famph. L. 1898, p. 603), which is identical in language with section 2 of the Replevin act. 3 Comp. Stat., p. 4368.
There is but a single question presented for decision in this case, viz., whether a, demand was essential before commencing the action. Motions to nonsuit and to direct a verdict for the defendant were made on the ground that no demand had been made upon the defendant for possession of the goods. The court overruled the motions, holding that no demand was necessary. We think this was error. The facts on which the motions were based, as returned by the record, are: The action was brought to- obtain possession of certain goods alleged to be owned by the Crown Company, the plaintiff. The plaintiff had sold to one Lucy Cuozzo the goods in question by a conditional bill of sale. Before paying for them, she abandoned the goods, on the premises of her landlord, Frank Brunetto, at No. 1 Bloomfield avenue, Montclair, New Jersey. The landlord attached the goods of Lucy Cuozzo and obtained a judgment against her for the sum of $18 for unpaid rent. The goods remained in the actual possession of the landlord, Brunetto, at No. 1 Bloomfield avenue, Montclair.
As was pointed out by Mr. Justice Dcp-ue, in the ease of Woodside v. Adams, 40 N. J. L. 430, formerly, replevin could be maintained only when the goods and chattels were so taken as that an action of trespass cte bonis asporlatis would lie. Bruen v. Ogden, 11 Id. 370; 34 Cyc. 1353. This was the doctrine of the common law. Now, by statute, the action is also given for an unlawful detention, but replevin will not lie in all cases where goods are in another’s possession. There
The judgment of the District Court is therefore reversed and a new trial awarded.
