Elwood v. Smith
New York Supreme Court
Motion for a new trial. The complaint alleged that the defendant had become possessed of, and wrongfully detained from the plaintiff twelve tons of hay, the property of the plaintiff, and demanded that the defendant might be adjudged to deliver it up to the plaintiff. The defendant denied the allegations in the complaint.
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Motion for a new trial. The complaint alleged that the defendant had become possessed of, and wrongfully detained from the plaintiff twelve tons of hay, the property of the plaintiff, and demanded that the defendant might be adjudged to deliver it up to the plaintiff. The defendant denied the allegations in the complaint. Upon the trial the plaintiff gave .in evidence a chattel mortgage executed by one Hawk, bearing date the 31st of May, 1853. Among the items of property included in the mortgage was the following: “ About twelve acres of grass now growing in the meadow, all well fenced and…
1Opinion of the Court
Harris, Justice.
To sustain an action like this, the plaintiff must not only show that he is lawfully entitled to the possession of the property in question, but that the defendant unlawfully withholds it. The latter fact can only be established when it appears that, at the commencement of the action, the defendant had such control over the property that he might, if he would, "have delivered the possession to the plaintiff. A wrongful withholding implies a - power to deliver. If the defendant could not have delivered the property to the plaintiff he ought not to be punished for not doing it.…
2Cited by1 opinion
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