Hathaway v. Quimby

1 Thomp. & Cook 386

• Court: New York Supreme Court
• Decided: September 15, 1873
• Status: Published

Opinion

Parker, J.

The warrant in bankruptcy ran, not only against property subject to execution, but against choses in action and equitable interests. Simmons had a property in the horses, etc., subject to be seized under such warrant, and this was the property levied upon. Plaintiff does not allege the fact on which his right to take the property depended, to wit: that he deemed himself unsafe, or thought the property not well cared for.

Until the occurrence of one of these facts, Simmons had the right to possess and use the property. The occurrence of neither of these facts is alleged. Simmons’ right, therefore, is not shown to have expired. The defendant being authorized and bound to levy upon and seize the rights and interest of Simmons, was not liable to an action for so doing, or for failing to deliver up the property on plaintiff’s demand, since it is not shown that plaintiff was then entitled to it. He avers, it is true, that the ground on which he put his demand was, that he deemed himself unsafe, and did not think the property well taken care of and well treated; but he does not allege the fact that he did so deem himself unsafe, and did not think it well cared for.

The allegation that defendant converted the property to his own use, is, as it is stated, but the legal inference from the fact of refusal to deliver up the property to plaintiff, and not the averment of any other fact than those already stated.

We think the complaint defective in the omission of any fact showing plaintiff’s right to the possession of the property at the time when the suit was brought, and the demurrer should, therefore, have been sustained.

The order overruling it must be reversed, with costs, with liberty, however, to plaintiff to amend his complaint upon payment of costs of the appeal, and costs consequent upon the demurrer.

Order reversed and demurrer sustained.