Griffin v. Long Island R. Co.

• Decision Date: 02 February 1886
• Parties: GRIFFIN, Receiver, v. LONG ISLAND R. CO.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 348

4 N.E. 740

GRIFFIN, Receiver,

v.LONG ISLAND R. CO.¹

Court of Appeals of New York.

Filed February 2, 1886.

Edward E. Sprague, for appellant.

A. W. Weller, for respondent.

EARL, J.

This action was brought to recover the possession of two railroad cars. The plaintiff in his complaint alleged that he was the receiver of the Southern Hempstead Branch Railroad Company, and that he, as such, became entitled to the two cars; that sometime between the first of July, 1875, and the first of July, 1878, the defendant took from the possession of his railroad company the two cars, then the property of that company; that the cars were in the possession of the defendant, and had been for several years, but that the defendant refused to deliver the same to the plaintiff, although, before this action was commenced, he made a demand in writing upon it so to do, and that it unjustly detained them from him. There is no allegation in the complaint that the defendant wrongfully took possession of the cars, or wrongfully became possessed of them. The only wrong alleged is the refusal of the defendant to deliver the cars to the plaintiff upon his demand, and the detention of them from him after that. The defendant in its answer alleged that it had no knowledge or information sufficient to form a belief as to the truth of the allegation contained in the complaint of the appointment of the plaintiff as receiver; admitted that the plaintiff had made a demand in writing of it to deliver the cars, and that it had not delivered them; denied, on information and belief, each and every allegation of the complaint not before admitted or controverted; alleged, on information and belief, that the cause of action set forth in the complaint did not accrue within six years before the commencement of the action, and that the property referred to in the complaint had been in the possession of the Southern Railroad Company of Long Island, and its assigns, claiming title thereto for more than six years prior to the commencement of this action. Upon the trial the plaintiff gave evidence tending to show that the Southern Hempstead Branch Railroad Company owned the cars, and that the title to them came to him as receiver of that company; and he proved the value of the cars, and then rested. The defendant offered to show a sale of the two cars to the Southern Railroad Company of Long Island by the persons who owned them before they were claimed to have been sold to the plaintiff's railroad company. The plaintiff objected to the evidence, and the objection was sustained, the court ruling that the question of title in a third party was not raised by the pleadings, and the defendant excepted to the ruling. Later in the progress of the trial the defendant offered to prove title in the Southern Railroad Company of Long Island and its successor, the Brooklyn & Montunk Railroad Company, and that it was the lessee of the latter company, and as such in possession of all its property. The evidence was objected to by the plaintiff, and the objection sustained, on the ground that the title had not been set up in the answer, and the defendant excepted to the ruling. In these rulings, excluding evidence of title to the cars out of the plaintiff, we think the court erred.

The action to recover a chattel, as regulated by the Code of Civil Procedure, is substantially a substitute for the action of replevin as it had previously existed. At common law, and under the Revised Statutes, there were two actions of replevin: one in the cepit, and one in the detinet. In replevin in the cepit, the general issue was tendered by the plea of non cepit, and that put in issue only the taking at the place stated in the declaration. That rule of the common law was copied into the Revised Statutes. 2 Rev. St. 528, § 39. Under that plea the defendant could not show title in himself or in a stranger. As it was necessary, in such an action, for the plaintiff only to show that he was in possession of the property, and that the defendant wrongfully took it from his possession, the plea put in issue all plaintiff was in the first instance bound to prove. Without more, property in a third person could be no defense to such an action. Therefore, in order to defend such an action, the defendant was bound to prove either property in himself, or property in a third person with which he was in some way connected, and under which he could justify, and these facts he was bound specially to allege. But in an action of replevin in the detinet the general issue was tendered by the plea of non detinet, and that plea at common law put in issue as well the plaintiff's property in the goods as the detention thereof by the defendant. And it was provided in the Revised Statutes (2 Rev. St. 529, § 40) that ‘when the action is founded on the wrongful detention of the goods, and the original taking is not complained of, the plea of the general issue shall be that the defendant does not detain the goods and chattels specified in the...