Hitchcock v. Wimpleberg
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Benjamin Wimpleberg, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Washington on the 28th day of November, 1904, denying the defendant’s motion to vacate a judgment entered in the action on the 10th day of November, 1904, or to correct the same to conform to the verdict, and to strike out the p>rovision therein awarding costs to plaintiff.
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Appeal by the defendant, Benjamin Wimpleberg, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Washington on the 28th day of November, 1904, denying the defendant’s motion to vacate a judgment entered in the action on the 10th day of November, 1904, or to correct the same to conform to the verdict, and to strike out the p>rovision therein awarding costs to plaintiff. The action is brought in replevin to recover the possession of a watch claimed to belong to the plaintiff. In the complaint it is stated that the watch…
1Dissent
Chester, J. (dissenting):
In the prevailing opinion it is assumed that this is an action in replevin, but the complaint contains allegations which are appropriate to an action for conversion equally as well as to one for replevin. In addition to the allegations of ownership of the watch by the plaintiff and of the wrongful detention thereof by the defendant after demand therefor by the plaintiff, it is alleged that the “ watch has been sold and disposed of by the defendant with the intent to deprive the plaintiff of the use and benefit thereof.” The proof on the trial supported this,…
2Cases cited1 opinion
- McLain v. Mathushek Piano Manufacturing Co.Appellate Division of the Supreme Court of the State of New York · 1900