65 N.Y.S. 1014 | N.Y. App. Div. | 1900
The action was brought to recover possession of four wampum belts, and for equitable relief in reference thereto. The defendant claimed that he acquired title to the belts from Rev. Dr. Oliver Crane, March 24, 1893; that Dr. Crane acquired title .thereto from Henry B. Carrington of the United States army, in the month of July, 1892, and that Carrington acquired title thereto from Thomas Webster, a member of the Onondaga tribe of Indians living on the Onondaga reservation in the State of New York on the 10th day of February, 1891. The claim made by the plaintiffs was that at the time Webster assumed to sell the belts to Carrington, they were not the property of Webster, and he had no power to sell or transfer title thereto, but that they belonged to a confederacy of Iroquois Indians. The trial court dismissed the complaint, holding that plaintiffs had no right to maintain such an action, and that the defendant had good title to the belts.
As to the right of the plaintiffs to maintain such an action, we must hold, since the decision by the Court of Appeals of Johnson v. Long Island R. R. Co. (162 N. Y. 462), that the Indian plaintiffs cannot maintain the action. That was an action to recover real property (ejectment). This is one to recover personal property, in form, in equity, but the principle is the.,same in both actions. It is said by the appellants that this question was not properly raised as to the Indians brought in by the order of December 20, 1898. It seems to us that the real intention was to make 'the same answer to the additional Indian plaintiffs as was made to the original ones, and the action was apparently tried upon this theory. The bringing in of these parties was a matter of favor to the plaintiffs, and they should not be permitted to take advantage of any technical objection like this one. If necessary to correct the answer or order it should be done by this court, under section 723 of the Code of Civil Procedure. More than this, the plaintiffs have given evidence that all title which the Indians had to these wampum belts has been transferred to the University of the State of New York.
The only plaintiff which can, by any possibility, maintain this action, therefore, is the University of the State of New York. It undoubtedly has power to bring actions generally. It is a corporation having capacity to sue and bo sued. It has a State museum,
If there were any good purpose to be served by allowing the Indians themselves to regain possession of the belts, we might struggle to reach such a result, but where the controversy is between
After an extended examination of the record we conclude the judgment appealed from should be affirmed, with costs.
All concurred, except McLennan, J., not voting.
Judgment affirmed, with costs.