Kerner v. Boardman
New York Court of Common Pleas
Appeal from trial term. Action by Charles W. Kerner against CharlesH. Boardman and others, for the conversion of a parcel of teas. Plaintiff bought the teas of Payne & Storm in good faith and for val-ue paid. Upon an allegation that Payne & Storm had got the teas from him by fraud, defendant Boardman brought replevin against Johnson, assignee for creditors of Payne & Storm, and under process the sheriff took possession of the teas.
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Appeal from trial term. Action by Charles W. Kerner against CharlesH. Boardman and others, for the conversion of a parcel of teas. Plaintiff bought the teas of Payne & Storm in good faith and for val-ue paid. Upon an allegation that Payne & Storm had got the teas from him by fraud, defendant Boardman brought replevin against Johnson, assignee for creditors of Payne & Storm, and under process the sheriff took possession of the teas. Kerner, plaintiff herein, made affidavit of claim to the teas, pursuant to section 1709 of the Code; and, having been indemnified by Boardman, the sheriff…
1Opinion of the CourtPryor, J.
The validity of the judgment is impugned upon three grounds, but a slight discussion suffices to show that neither objection is tenable. In the first place, the appellant challenges the sufficiency of the complaint, because it omits to allege a right of possession in the plaintiff. True it is that, to recover in trover, actual possession or a right of possession is indispensable, (Clements v. Yturria, 81 N. Y. 290;) but the gist of the action is injury to the property, as in trespass the gist of- the action is injury to the possession. Hence, in trover, an averment of property is necessary;…
2Cases cited4 opinions
- Hess v. . HessNew York Court of Appeals · 1889
- Heine v. AndersonThe Superior Court of New York City · 1853
- Pool v. EllisonNew York Supreme Court · 1890
- Goodman v. GoetzNew York Court of Common Pleas · 1891
3Cited by3 opinions
- Phillipos v. MihranWashington Supreme Court · 1905
- Hoff v. CoumeightNew York Court of Common Pleas · 1895
- Twentieth Century Machinery Co. v. Excelsior Springs Mineral Water & Bottling Co.Supreme Court of Missouri · 1918