48 Barb. 539 | N.Y. Sup. Ct. | 1867
The only question in this case, is, whether an action for claim and delivery of personal property can be maintained against the wrongdoer after he has parted with the possession of the property.
Contradictory decisions have been made on this question, in the Superior Court, and at different terms of the Su
A later case was that of Jessup v. Miller et al. not reported. In that case it was proved that one of the defendants had parted with the property before suit brought, and that the defendant requested the court to charge the jury that there was no evidence to show that this defendant had the possession or control of the property at the time the suit was commenced. The court declined so to charge, and the jury found for the. plaintiffs. Afterwards a new trial was granted, upon the ground, as to this defendant, that the judge erred in refusing so to charge the jury. This order was appealed from, and affirmed by the general term. An appeal was then taken to the Court of Appeals. Mullin, J. delivered the opinion of the court, holding the granting of a new trial erroneous, and the order was reversed and the ruling at the trial was affirmed.
These decisions, I think, establish the doctrine that an action for claim and delivery of personal property may be brought against the wrongdoer, although he has parted with the possession of the property before the commencement of the action.
This case comes within the rule, The defendant was charged with fraudulently obtaining the plaintiff’s property, and with having placed it on board of a vessel and consigned to his uncle in London, and that the defendant had drawn drafts upon the bill of lading, payable when it should arrive. The plaintiff had a right to ask a jury to pass upon these questions, and, if they found the transaction to be fraudulent, to recover in this action.
I think the court below erred, and the judgment should be reversed, and a new trial ordered, costs to abide the event.
Leonard, Ingraham and Suther land, Justices.]