M'Carty v. Vickery
New York Supreme Court
IN ERROR, on certiorari to a justice’s court. Vickery, the plaintiff below, brought an action of trespass against JtfiCarty for cutting and taking away some wood.
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IN ERROR, on certiorari to a justice’s court. Vickery, the plaintiff below, brought an action of trespass against JtfiCarty for cutting and taking away some wood. The defendant pleaded not-guilty, and the cause was tried before a jury. _ On the trial, it appeared, that one Peter Fake had bought some wood of tire plaintiff, and gave a note, signed by himself and one Henry jl'PCar/y, as security, ■ The wood was delivered .to Fake, and the defendant below had been engaged in taking it away. The plaintiff afterwards forbade the defendant to take away the wood, alleging, that afraud had been…
1Per curiam
Although it is pretty evident that the plaintiff -below was deceived in the sale of his wood to Fake, yet there is no principle upon which an action of trespass can be sustained against the defendant. The wood had actually been delivered to Fake; the plaintiff was, therefore, devested of the possession, which is necessary to the support of an action of trespass. Had not the plaintiff parted with the possession, the insolvency of the purchaser might have justified a refusal to deliver ; but, by the delivery, the property was changed, and, trespass could not be maintained.
Judgment reversed-
2Cited by7 opinions
- Mowrey v. WalshNew York Supreme Court · 1828
- Stevens v. HydeNew York Supreme Court · 1860
- Chapman v. LathropNew York Supreme Court · 1826
- Conway v. BushNew York Supreme Court · 1848
- Ash v. PutnamNew York Supreme Court · 1941
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