67 A.D. 130 | N.Y. App. Div. | 1901
Judgment affirmed, with costs, on the opinion of the court below, with leave to the defendant to withdraw demurrer and. answer on payment of costs in this court and in the court below.
The following is the opinion of Scott, J., delivered at Special Term:
It is not complained that the defendants wrongfully took the chattels sued for, nor is it alleged that they have converted them. All that is alleged is that they wrongfully detained them. The Code requires that in such a case the complaint must set forth the facts showing that the possession is wrongful, and the defendants insist that the complaint fails to set forth such facts. With this, contention I cannot agree. The complaint sets forth that plaintiff’s intestate, at her death, was the owner of and entitled to immediate possession of the chattels, and that he was duly appointed her administrator. Prima facie these facts not only entitled him as administrator to the possession of the chattels, but made it his duty to reduce them to possession. The complaint further shows that the defendants are in possession of the chattels, and that plaintiff has demanded their delivery to him, which demand has been refused by defendants. These facts, admitted by the demurrer, establish the plaintiff’s right to possession, and show that the defendants’ detention, in violation of his right, is wrongful. Section 1721 of the Code does not require the plaintiff in such an action to allege
