Hitchcock v. Wimpleberg
Appellate Division of the Supreme Court of the State of New York
Appeal from Special Term, Saratoga County. Action by Edward F. Hitchcock against Benjamin Wimpleberg. From an order denying defendant’s motion to vacate a judgment in favor of plaintiff, or to correct it to conform to the verdict, and to strike out a provision therein awarding costs to plaintiff (92 N. Y. Supp. 298), defendant appeals. Affirmed. The action is brought in replevin to recover the possession of a watch claimed to belong to the plaintiff.
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Appeal from Special Term, Saratoga County. Action by Edward F. Hitchcock against Benjamin Wimpleberg. From an order denying defendant’s motion to vacate a judgment in favor of plaintiff, or to correct it to conform to the verdict, and to strike out a provision therein awarding costs to plaintiff (92 N. Y. Supp. 298), defendant appeals. Affirmed. 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 had been disposed of by the defendant. Proof was offered, upon the trial of the plaintiff’s…
1DissentChester, J.
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 allegation. It was shown that the…
2Cases cited2 opinions
- Conklin v. McCauleyAppellate Division of the Supreme Court of the State of New York · 1899
- McLain v. Mathushek Piano Manufacturing Co.Appellate Division of the Supreme Court of the State of New York · 1900