34 N.Y.S. 729 | N.Y. Sup. Ct. | 1895
There were two counts in the plaintiff’s complaint, the first alleged the ownership of the plaintiff in, and that it was entitled to, the possession of a kodak camera and other articles of personal property, of the value of $180, and that it was detained from the plaintiff. The second cause of action alleged that the defendant wrongfully and unlawfully took from the possession of the plaintiff, and carried away, the personal property of the plaintiff, to wit, money in various amounts, aggregating and to the value of $468; “that defendant did pay and exchange the money so taken, or some part thereof, for the following described personal property,
The remaining question is whether replevin can be maintained upon the facts alleged in the pleading demurred to. The theory of the plaintiff is that the defendant acquired no rights in the substituted property, and is not permitted to assert any, and that the plaintiff is entitled in a court of law to pursue the substituted property with the same proceedings and remedies that he would have as to the property taken from it; and to sustain this position the plaintiff cites Silsbury v. McCoon, 3 N. Y. 379, and cases there cited; Van Alen v. Bank, 52 N. Y. 1; Baker v. Bank, 100 N. Y. 31, 2 N. E. 452. The case first cited was where corn had been converted into whisky, and kindred cases are there referred to where log» have been converted into lumber or shingles, leather into boots or shoes, gold into cups, etc., and asserting the proposition that the common law recognizes the same rule as the civil law in such cases, —that, where the rights of innocent persons did not intervene, any value or accretion added to the original property wrongfully taken from the owner belongs to the original owner, although by the change in the property effected by the wrongdoer it could no longer be indentified, but evidence was required, from the changes effected by the wrongdoer, to trace it back to the original property. This was an action of trover to recover the whisky. In Van Alen v. Bank, an agent had deposited money of his principal to his own account, and the principal brought an action to recover the money.