Crown Co. v. Reilly
| Decision Date | 03 February 1916 |
| Citation | 88 N.J.Law 590,96 A. 481 |
| Parties | CROWN CO. v. REILLY et al. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Appeal from District Court of East Orange.
Action by the Crown Company, a corporation, against Charles Reilly and another. From judgment for plaintiff, defendant Frank Brunetto appeals. Reversed, and new trial awarded.
Argued November term, 1915, before GARRISON, TRENCHARD, and BLACK, JJ.
Howard F. Kirk, of Newark, for appellant. Abraham M. Herman, of Newark, for respondent.
This was an action of replevin originally brought in the East Orange district court, under section 119 of the District Court Act (P. L. 1898, p. 603), which is identical in language with section 2 of the Replevin Act (C. S. of N. J., vol. 3, p. 4368).
There is but a single question presented for decision in this case, viz., whether a demand was essential before commencing the action. Motions to nonsuit and to direct a verdict for the defendant were made on the ground that no demand had been made upon the defendant for possession of the goods. The court overruled the motions, holding that no demand was necessary. We think this was error. The facts on which the motions were based, as returned by the record, are: The action was brought to obtain possession of certain goods alleged to be owned by the Crown Company, the plaintiff. The plaintiff had sold to one Lucy Cuozzo the goods in question by a conditional bill of sale. Before paying for them, she abandoned the goods, on the premises of her landlord, Frank Brunetto, at No. 1 Bloomfield avenue, Montclair, N. J. The landlord attached the goods of Lucy Cuozzo and obtained a judgment against her for the sum of $18 for unpaid rent. The goods remained in the actual possession of the landlord Brunetto at No. 1 Bloomfield avenue, Montclair.
As was pointed out by Mr. Justice Depue in the case of Woodside v. Adams, 40 N. J. Law, 430, formerly replevin could be maintained only when the goods and chattels were so taken as that an action of trespass de bonis asportatis would lie. Bruen v. Ogden, 11 N. J. Law, 370, 20 Am. Dec. 593; 34 Cyc. 1345. This was the doctrine of the common law. Now, by statute, the action is also given for an unlawful detention, but replevin will not lie in all cases where goods are in another's possession. There must be an actual conversion, or a refusal to deliver on demand before the detention becomes unlawful. Id.; Veader v. Veader, 87 N. J. Law, 140, 94 Atl. 30. So, it was held,...
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