Butler v. McIlvaine

31 How. Pr. 379, 1866 N.Y. Misc. LEXIS 105

• Court: The Superior Court of New York City
• Decided: August 18, 1866
• Status: Published

Opinion

Robertson, C. J.

This is a motion to discharge an order of arrest. The action is for the conversion of certain choses in action (Smith & Parmellee Gold Mining Company, and Benton Gold Mining Company Stock). The affidavit of the plaintiff on which such order was made, is positive, as to the leaving of such choses in action with the" defendant,- on an agreement to “ return” them, "and a demand and refusal to do so. It also alleges a sale on information and belief. The defendant’s affidavit, on which he now moves, denies any dealings with the plaintiff, and alleges that he received similar dioses in action from a brother of the plaintiff (J. W. Butler), which he lawfully sold and accounted to him for the proceeds. Such affidavit is contradicted by the affidavit of such brother of the plaintiff, who states that the defendant knew the stock sold by him belonged to such plaintiff.

The receipt and sale of such choses in action by the defendant is admitted, the only controversy is as to whom they belonged, which properly will come in question on the trial. Were it permissible to try such question by affidavit, the testimony of the ■ disinterested witness for the plaintiff must have more weight than that of the defendant.

The motion must be denied with ten dollars costs.