Walling v. Miller

• Decision Date: 17 January 1888
• Citation: 15 N.E. 65,108 N.Y. 173
• Parties: WALLING v. MILLER.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 173

15 N.E. 65

WALLING

v.MILLER.¹

Court of Appeals of New York.

January 17, 1888.

Appeal from general term, supreme court, Second department.

Action by Brice P. Walling, respondent, to recover damages for the wrongful conversion by George W. Miller, appellant, of certain personal property in the town of Warwick, Orange county, consisting of a creamery building, attachments, etc., and an ice-house and contents.

M. N. Kane and E. A. Brewster, for appellant.

W. F. O'Neill, for respondent.

EARL, J.

This action was brought to recover damages for the wrongful conversion of certain buildings situated upon the land of J. W. Utter, in Orange county. In February, 1883, the buildings belonged to John W. Vanderoef, who was the tenant of Utter under a lease expiring April 1, 1883; on the twenty-sixth of February, 1883, he gave his wife, Eliza, a chattel mortgage payable one day after date, covering these buildings and all the rest of his personal property. Neither Vanderoef nor his wife removed the buildings during the term of the lease. On the sixth of March, 1883, Utter leased the premises upon which the buildings were situated to Miller, the defendant, and to Jacob Price, for one year from April 1, 1883, and on April 4th they entered into possession of the premises and of the buildings under their lease. Both Miller and Price were judgment creditors of Vanderoef, and on the seventeenth of April, 1883, they commenced an action in the name of Miller against Vanderoef and his wife to reach Vanderoef's equitable interest in the buildings. In that action Vanderoef made default, and his wife answered that her chattel mortgage had been satisfied. Thereupon a motion was made for the appointment of a receiver pending the trial of the action, and on May 14, 1883, George W. McElroy was appointed a receiver expressly of these buildings. Upon the same day he filed security and took possession of the property. A final decree was entered in the action, September 3d, by which the receiver was directed to sell the buildings, and on the eleventh of September following he sold them, and the purchasers at the sale thereafter took them down and removed them. Afterwards this action was brought by the plaintiff against Miller and Price, and McElroy, the receiver, and the purchasers of the buildings; claiming that he was the owner of the property, and charging the defendants with its conversion. His title was founded upon an alleged sale by virtue of an execution issued upon a judgment against Vanderoef. The judgment was confessed by Vanderoef to his brother James, who assigned it to another brother on the seventh of May, 1883. Thereafter execution was issued on that judgment, and it was claimed that a levy was made on the twelfth of May, 1883. A sale was had under the execution on the first day of June, 1883, at which the property was struck off to the owner of the judgment, who afterwards sold the same to this plaintiff. This action was discontinued as against the receiver, and upon the trial the complaint was dismissed as against all the other defendants except Miller, and a verdict was rendered against him.

We will assume, as most favorable to the plaintiff, that these buildings were personal property, and that they did not become a part of the realty upon the termination of Vanderoef's lease. Utter, the landlord, so treated them, and so did Miller and Price, the lessees who succeeded Vanderoef, by seizing and selling them as personal property. The rule of law which would otherwise have attached these buildings to the realty as a part thereof, after the expiration of the lease, is defeated in its operation by the intention and conduct of the parties interested. We will also assume, without determining it, that there was a valid levy upon these buildings as personal property on the twelfth day of May, 1883, under the execution issued upon the judgment recovered against Vanderoef, and yet we reach the conclusion that the judgment ought to be reversed for at least two reasons.

1. Two days after the levy, by virtue of the execution issued upon the judgment against the owner of the property, a receiver of the property was appointed. There is no question that the equitable action was regularly commenced, and that the court had jurisdiction to appoint the receiver. On the same day he took possession of the property, and thereafter it was, in theory of law, in the possession and custody of the court; and...