Tyrrell v. York

• Court: Superior Court of New York
• Writing for the Court: Learned, P. J.
• Citation: Tyrrell v. York, 10 N.Y.S. 611 (N.Y. Super Ct. 1890)
• Decision Date: 07 July 1890
• Parties: Tyrrell v. York

10 N.Y.S. 611

Tyrrell v. York

Supreme Court of New York, General Term, Third Department

July 7, 1890

Appeal from Albany county court.

Action by Maggie Tyrrell against James York to recover damages for the taking of personal property. Judgment for plaintiff. Defendant appeals. For former report see 8 N.Y.S. 939.

Judgment and order reversed, and a new trial granted, costs to abide event.

John H Gleason, (Andrew Hamilton, of counsel,) for appellant.

Merritt & Ryan, (James H. Ryan, of counsel,) for respondent.

Argued before Learned, P. J., and Landon and Mayham, JJ.

OPINION

Learned, P. J.

This action was brought in a justice's court, to recover damages for taking goods and chattels. The plaintiff recovered, and the defendant appealed. On a new trial in the county court the plaintiff again recovered and the defendant appealed. The plaintiff claims to have been the owner of this property (household furniture) when it was taken by defendant. The defendant avers that on the 14th of January 1888, John Tyrrell, then the owner, mortgaged the property to defendant, and that by virtue of the mortgage defendant took and sold the property February 29, 1888. Tyrrell bought the property of defendant in December, 1886, and took it to his house, where he and plaintiff were living as husband and wife. They had been married (at least formally) in September, 1886. On February 20, 1888, Tyrrell went away from plaintiff. She claims that in January, 1887, and again in July, 1887, Tyrrell gave her this property. Of course the material question is as to her title. If she owned the property, Tyrrell could not give a valid mortgage on it. If she did not own it, then it is immaterial whether the mortgage was for more or less than Tyrrell owed York. Her title must depend on the alleged gift by Tyrrell to her, because it is plain that before such alleged gift the property was Tyrrell's. She says Tyrrell secured a house in December, 1886, and put the furniture in it; that he gave it to her the first week in January, 1887; that she had him arrested in July, 1887, when he had been drinking, and she also commenced an action for divorce against him; that he then took the pledge, and agreed, if she would return and live with him, that all the furniture should be hers, and that she returned and lived with him till he went away. This last arrangement is also testified to by the police justice before whom Tyrrell was brought. The defendant insists that there was not sufficient proof of a gift to go to the jury, and not sufficient delivery of possession to go to the jury, as showing a completed gift.

The doctrine applicable to this case is shown in Armitage v. Mace, 96 N.Y. 538 where, on slight evidence of the gift by a husband to his wife of a mare, it was held that there was enough to show "all the possession that a wife living with her husband could have." And the law is further shown in Whiton v. Snyder, 88 N.Y. 299. There, after speaking of personal ornaments, etc., the court says: "As to * * * furniture * * * adapted to the use of and used by the family generally, and in their common possession, a different rule must apply. * *...