Smith v. Smalley
Appellate Division of the Supreme Court of the State of New York
Appeal, by the plaintiff, Lewis M. Smith, from a- judgment of the Supreme Court in favor of the defendant, 'entered in the office of the clerk of the county of Chemung on the 21st day of March,-1896, upon the report of a referee. On the 25th day of August, 1893, John -H. MdSTaney, who was engaged in a general merchandise business, by a written bill of sale-conveyed to-his father, John MdSTaney, all the merchandise in his-store.
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Appeal, by the plaintiff, Lewis M. Smith, from a- judgment of the Supreme Court in favor of the defendant, 'entered in the office of the clerk of the county of Chemung on the 21st day of March,-1896, upon the report of a referee. On the 25th day of August, 1893, John -H. MdSTaney, who was engaged in a general merchandise business, by a written bill of sale-conveyed to-his father, John MdSTaney, all the merchandise in his-store. Thereafter, and .on the.- ijtli day of September, 1893, the defendant, as sheriff, levied upon the merchandise so conveyed by John H. MciTaney to his father under an…
1Opinion of the Court
Herrick, J.:
To recover in an action for conversion there must have been possession of the property by the plaintiff, or there must be an existing right to take immediate actual possession of it. (Esmay v. Fanning, 9 Barb. 176; Petrie v. Stark, 79 Hun, 550; Clements v. Yturria, 81 N. Y. 285, 290.)
In this case the evidence shows that when the sheriff made his levy under the attachment, he left the property in the place where it then was ; it is perhaps doubtful whether he did evérything that is necessary tó constitute a legal levy, but' for the purposes of this case it will'be assumed that he…
2Cases cited5 opinions
- Pease v. . SmithNew York Court of Appeals · 1875
- Boyce v. . BrockwayNew York Court of Appeals · 1865
- Esmay v. FanningNew York Supreme Court · 1850
- Clements v. . YturriaNew York Court of Appeals · 1880
- Petrie v. StarkNew York Supreme Court · 1894
3Cited by11 opinions
- McCoy v. American Express Co.New York Court of Appeals · 1930
- Byrne v. WeidenfeldAppellate Division of the Supreme Court of the State of New York · 1906
- Crutts v. DalyNew York Supreme Court · 1914
- Levenson Wrecking Co. v. HillebrandAppellate Terms of the Supreme Court of New York · 1916
- Simon v. SimonAppellate Division of the Supreme Court of the State of New York · 1899
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