Duell v. Cudlipp

1 Hilt. 166

• Court: New York Court of Common Pleas
• Decided: July 15, 1856
• Status: Published

Opinion

INGRAHAM, Eirst Judge. —

Whether or not Mrs. Proser agreed to permit Mr. Green to take the ring and pawn it was a question of fact for the justice, and with his finding this court ought not to interfere. Green stated that she gave permission to him to use it. Mrs. Proser says she never gave the ring to Green; that he took it without her permission or consent; and that she had no idea he would take it. The subsequent reception of the pawn ticket and offer to pay the defendant the money advanced by him were not sufficient to establish such commit. They were but efforts on her part to save the property from going back to the party who had improperly taken the ring from her. It seems to me very improbable that a person, who would not lend another $20, would voluntarily place in his possession a ring worth $80 to pawn.

The finding of the justice in favor of the plaintiff is based on the proof that no authority was given to Green to pawn the ring, and it may well be doubted whether the defendant had any lien upon it at all; but when he had notice of the transfer of the ticket to Mrs. Proser, .and that the property was hers, that she had offered to pay the amount loaned, and that he had entered in his book notice of such claim, I think the defendant was wrong in delivering up the property to Green, and should be held liable.

Whether or not he should be allowed the amount for which it was pawned does not appear to have been discussed upon the trial. If there was no permission given to Green to take the ring, there could have been no authority to pawn it, and the defendant could obtain no title to the property; but, as this is not made a ground of appeal, it is not necessary to discuss it.

I think, however, there is a difficulty in sustaining this judgment on the facts proven.

The assignment to the plaintiff was on the 1st of February, 1856. The action was commenced on the 5th of February, 1856. The demand, to entitle the plaintiff to recover, must have been made after the assignment. At that time the property was not in the defendant’s possession, and a demand of it from him, with a refusal to give it, because it had passed out of his possession to another, did not prove a conversion. It is immaterial in this case whether Mrs. Proser could have maintained the action or not. It is clear that there has been no conversion of the property since the plaintiff has held the title to it.

In McKee v. Judd (2 Kernan, 622), in which the Court of Appeals held that a right of action for the conversion of personal property was assignable, the instrument of assignment was a general conveyance of all the assignor’s property and estate. In the present case the assignment transfers nothing but the property, and without a demand and refusal, or a conversion after the assignment, the present plaintiff could maintain no action for the property.

The complaint in this case was for detaining a diamond pin, the answer a general denial, and the proof is conclusive that before the plaintiff had any title to the pin the defendant had parted with the possession. That an action to recover the property, under such circumstances, cannot be maintained was settled in Roberts v. Randal, 3 Sand. S. C. Rep. p. 707 ; Brockway v. Brough, 8 How. Pr. Rep. p. 188 ; and those cases have been followed by this court in several instances.

In order to have brought this case within the rule, as laid down in 2 Kernan, p. 622, the assignment should have transferred any cause of action for the conversion, as the mere transfer of the property does not give a right of action against a party •who has ceased to detain it before the plaintiffs title accrued. Hill v. Govell, 1 Com. 522.

Judgment reversed.