156 N.E. 629 | NY | 1927
The sole question on this appeal is whether, previous to the institution of an action to replevy a stolen chattel, demand must be made upon one in possession who originally was an innocent purchaser for value but who before the institution of the action had acquired knowledge of the theft and of plaintiff's title, yet assumed to exercise dominion over the chattel and to make a counterclaim of title to it.
All the facts are conceded. A motor car was stolen from its owner and plaintiff as insurer paid him for his loss and succeeded to his rights. Police officers found it in the garage of defendant's husband who without knowledge of the theft had purchased it in her name. They informed him in the clearest manner of the owner's name and address and of the theft and removed it to the police garage. Defendant regained possession of the car and after this action was begun she gave a bond, counter-replevied the car, used it as her own and at the time of *104 the trial had it in her husband's garage. Her knowledge of its theft and her exercise of dominion over it both before and since this action was begun became complete. In her answer she denies that she wrongfully detains the car from plaintiff and that plaintiff is its owner and entitled to its immediate possession. At the trial her counsel referred to her as "the true owner." Of course, under such circumstances, formal demand would have constituted a futile ceremony. Upon such facts, does the law of this State require plaintiff solemnly to indulge in the formality of a demand before it can maintain this action? No other question is involved in the case.
No precedent imposes such a useless procedure upon one whose property has been stolen and is in the possession of another who, before the institution of the action acquired knowledge that it had been stolen yet claimed to be "the true owner" and continued to assert dominion over it. Outside our jurisdiction, the rule generally prevails that where the circumstances are such as to show that a demand would have been unavailing, no demand is necessary. This rule applies in other jurisdictions to a bonafide purchaser of one who has no right to sell, for such purchaser has no lawful possession as against the owner. Some of the early decisions in this State, however, are thought by some to indicate on the surface a contrary doctrine. (Ely v. Ehle,
Since the rule, regarded in many jurisdictions as unduly *106 technical, requiring demand and refusal prior to the institution of a replevin action is based, according to the observations of judges in this State, upon the reason that one in lawful possession shall not have such possession changed into an unlawful one until he "be informed of the defect of his title and have an opportunity to deliver the property to the true owner," the rule does not apply, even within our jurisdiction, when the facts are that prior to the institution of the action, defendant had full information relating to her own defect in title and the identity of the true owner.
The judgment of the Appellate Division and that of the Trial Term should be reversed and judgment ordered upon the verdict in favor of plaintiff for the return of the chattel replevied, or for the sum of $1,750 in case possession thereof cannot be had, together with damages of $1,200 for the detention of the chattel, and costs in all courts.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN and KELLOGG, JJ., concur.
Judgment accordingly.