Sinnott v. Feiock

• Decision Date: 01 February 1901
• Citation: 59 N.E. 265,165 N.Y. 444
• Parties: SINNOTT v. FEIOCK et al.
• Court: New York Court of Appeals Court of Appeals

165 N.Y. 444

59 N.E. 265

SINNOTT

v.FEIOCK et al.

Court of Appeals of New York.

Feb. 1, 1901.

Appeal from supreme court, appellate division, Fourth department.

Action by Joseph F. Sinnott, individually and as surviving partner of Andrew F. Moore, deceased, against Bernard Feiock, impleaded with another. From a judgment of the appellate division (54 N. Y. Supp. 1110) affirming a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Frank J. Hone, for appellant.

Charles E. Bostwick, for respondent.

CULLEN, J.

The action is in replevin to recover certain chattels which it was alleged the plaintiff was induced to sell to the respondent by fraud on the part of the latter. The complaint was in the ordinary form, and averred property in the plaintiff, and that the defendant wrongfully took and detained the chattels. The complaint was dismissed on the opening of the plaintiff's counsel, and his concession (apparently made for the purpose of obtaining a ruling on the question) that prior to a demand for the return of the goods, and before the commencement of the action, the chattels had been taken from the defendant on an execution against him and sold, so that at the time of such demand and commencement of the action they were not in the defendant's possession, custody, or control. On this concession the trial court dismissed the complaint, and the judgment entered on such dismissal has been affirmed by the appellate division.

There was no suggestion made that the defendant obtained the property with the intention that it should be seized on execution or in pursuance of any conspiracy or collusion with the execution creditor. The sale was not void, but voidable at the election of the plaintiff. At the time the chattels were seized on execution the plaintiff had not rescinded the sale, and, whatever were the plaintiff's rights, the seizure of the goods as to the defendant was lawful, and he could not resist or avoid it. The question presented, therefore, is whether the defendant is liable in an action of replevin for the recovery of the chattels after they have been taken from him by process legal as to him, and not by any voluntary act on his part. The determination of this question requires an examination and consideration of this particular form of action as it now exists under our Code and statutes.

Originally, at common law, the action of replevin lay to recover the possession of goods illegally distrained by a landlord. The primary object of the action was to recover possession of the specific chattels. The form of action was so useful that the action was extended to nearly all cases of unlawful caption or detention of chattels, where it was sought to recover the chattels in specie. In many cases where the plaintiff was unable to obtain the return of the chattels he could recover in the action their value. Still the action remained essentially one to recover the possession of chattels, as distinguished from actions in trespass or trover to recover damages for the seizure of for the value of the property. There were many technical rules in force relating to this form of action, which at times made proceedings under it difficult, and in 1788 a statute was passed in this state (1 Rev. Laws, 1813, p. 91) to simplify the procedure. It directed the form of plaint before the sheriff, in which the plea was ‘of taking and unjustly detaining’ beasts, goods, or chattels. Afterwards the Revised Statutes prescribed the rules governing actions of replevin, and the procedure therein. Title 12, c. 8, pt. 3. In the original note of the revisers is stated their intention to so extend the action of replevin ‘as to make it a substitute for detinue, and a concurrent remedy in all cases of the unlawful caption or detention of personal property, with trespass and trover.’ We do not think the revisers used the term ‘concurrent’ as meaning ‘co-extensive,’ for by section 6, tit. 12, it is provided that the action shall in all cases be commenced by writ, the form of which is prescribed as follows: ‘Whereas A. B. complains that C. D. has taken, and does unjustly detain (or ‘does unjustly detain,’ as the case may be).' The execution in the action required the sheriff to replevin the goods if they could be found, and deliver them to the plaintiff, and, in case they could not be obtained, to collect their value, with the damages and costs, from the property of the defendant. The provisions of chapter 2 of title 7 of the Code of Procedure of 1848, entitled ‘Claim and Delivery of Personal Property,’ operated as a substitute for those of the Revised Statutes. They direct that at the commencement of the action the plaintiff may replevy the chattels, but in the affidavit to obtain the writ there is required the statement that the defendant ‘unjustly detains' them. The provisions of the present Code of Civil Procedure, in the article entitled ‘Action to Recover a Chattel’ (sections 1689-1730), are substantially the same as those of the old Code.

The question several times arose under the Code of Procedure whether replevin could be maintained against a party who was not in possession, either actual or constructive, or the chattels, and was the subject of conflicting decisions in the supreme court and in the superior court of New York. In finally came to this court, in Nichols v. Michael, 23 N. Y. 264. This was also a case of fraudulent purchase of goods, in which the defendant, before the action was brought, had voluntarily transferred the goods to his assignee. It was held that the action could be maintained. This decision was based on the authority of two English cases: Garth v. Howard, 5 Car. & P. 346, and Jones v. Dowle, 9 Mees. & W. 19. In the case in this court Judge Selden wrote: ‘The theory upon which these cases proceed is perfectly sound, and applies directly to the present case. It is that where a person is in possession of goods belonging to another, which he is bound to deliver upon demand, if he, without authority from the owner, parts with that possession to one who refuses to deliver them, he is responsible in detinue equally with the party refusing. He contributes to the detention. It is the consequence of his own wrongful delivery. The action in such cases may properly be brought against both, because the acts of both unite in producing the detention.’ This doctrine has been steadily adhered to by this court. Barnett v. Selling, 70 N. Y. 492; Dunham v. Troy Railroad Co., *42 N. Y. 543. These decisions, however, do not control the present case. They are authorities to the effect that where the defendant has wrongfully parted with possession the action will lie. As already stated, the defendant did not part with possession by any act on his part, but the property was taken from him by process of law valid as to him, and which he could not resist. To uphold a recovery in replevin under such circumstances we must go further, and decide that whenever property has been taken or obtained wrongfully an action of replevin may be maintained against the taker, regardless of whether the property is in his possessionor whether he has been lawfully deprived of it, and as a logical sequence, as we think, also regardless of the fact that the property sought to be replevied may have ceased to exist without fault on the defendant's part; in other words, that the action can be maintained under all circumstances to the same extent as an action for conversion. Such a doctrine would substantially destroy the characteristics of an action of replevin, which distinguish it as an action to recover possession of specific property, and we find no authority for it in the decisions of this or of our sister states. In Massachusetts the rule seems absolute that the defendant must be in possession when the action of replevin is brought. Richardson v. Reed, 4 Gray, 441;Hall v....