Legal Opinion

Ellis v. Lersner

New York Supreme Court

Decided April 1, 1867PublishedCited by 5 opinions

The answer denied every allegetion in the complaint, and also set up as a separate defense that the property had been shipped to Liverpool, and bills of lading obtained, and bills of exchange drawn against the bills of lading. Upon the trial the cause was opened by the plaintiffs* counsel admitting the drawing of the bills, and the receipt of money upon them.

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The answer denied every allegetion in the complaint, and also set up as a separate defense that the property had been shipped to Liverpool, and bills of lading obtained, and bills of exchange drawn against the bills of lading. Upon the trial the cause was opened by the plaintiffs* counsel admitting the drawing of the bills, and the receipt of money upon them. The- justice at the circuit dismissed the complaint, upon the ground that the property had passed from the possession of the defendant before the commencement of the suit. From this decision the plaintiffs appealed.

1Opinion of the Court

By the Court, Ingraham, J.

The only question in this case, is, whether an action for claim and delivery of personal property can be maintained against the wrongdoer after he has parted with the possession of the property.

Contradictory decisions have been made on this question, in the Superior Court, and at different terms of the Su*546preme Court; and the only source from which a settlement of this question can be obtained is the decision of the Court of Appeals on this point. I do not deem it necessary to review the decisions of this court. In Nichols v. Michael, (23 N. Y. Rep. 264,) this…

2Cases cited3 opinions

  1. Nichols v. . MichaelNew York Court of Appeals · 1861
  2. Brockway v. BurnapNew York Supreme Court · 1853
  3. Roberts v. RandelThe Superior Court of New York City · 1851

3Cited by5 opinions

  1. Riciotto v. ClementCalifornia Supreme Court · 1892
  2. Andrews v. HoeslichWashington Supreme Court · 1907
  3. Davis v. RandolphMissouri Court of Appeals · 1877
  4. Helman v. WithersIndiana Court of Appeals · 1892
  5. Starke v. PaineWisconsin Supreme Court · 1893

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