Hildreth v. Raffin

125 N.Y.S. 695 | N.Y. App. Div. | 1910

Carr, J.:

The plaintiff sued in replevin to recover possession of certain household goods. The defendant is her son-in-law. According to the ‘ plaintiff’s proofs, she loaned the articles to her daughter, the defendant’s wife. The daughter died and the defendant assumed' dominion over the articles and refused to restore them to the plaintiff. On the trial the. complaint was dismissed on the theory that the plaintiff’s remedy was in the Surrogate’s Court against the defendant as administrator of the deceased daughter’s chattels. When the motion to dismiss was granted there was no proof whatever that the defendant was the administrator of his wife’s estate or that he held the property- in question under claim of such authority.. It was-erf or, therefore, to grant the 'motion to dismiss;. If, however, ■there had been such, proof, it would have been error to dismiss on the theory presented..- The Municipal Court has jurisdiction of an action against “:an administrator or .executor as such, where the-, amount claimed does not exceed five hundred dollars, exclusive of interest and costs.” • (Mum Ot. Act [Laws of 1902, chap. 580],-§. 1, subd. 18, as amd.-by Laws of 1905, 'chap. 513.) It'is true" that this action was not brought against the defendant as administrator “as such,” as provided in the statute,,but against him individually for an act" which he may have done in. furtherance of his duties as administrator, if such he was. This act, however, was a personal act and not representative.. The unlawful detaining of the personal property was done, not by the decedent, but by the defendant himself.' The act of the. defendant created a cause of action, not against the éstate of the decedent, but against himself individually, Under these circumstances, he was sued properly in his individual capacity. (Matter of Van Slooten v. Dodge, 145 N. Y. 327; Anderson v. Thomson, 38 Hun, 394; 18 Cyc. 884.)

The judgment of the Municipal Court should be reversed and á new trial ordered, costs to abide the event. " '

Hieschbeeg, P. J., Wpodward, Burr and High, Jj.', concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. ■ •'

Case Details

Case Name: Hildreth v. Raffin

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Nov 18, 1910

Citation: 125 N.Y.S. 695

Court Abbreviation: N.Y. App. Div.