Lewis v. Varnum

12 Abb. Pr. 305

Opinion

By the Court.

Footnotes

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*—Daly, F. J.

—I agreethat the transaction was not a mortgage but .a pledge, and that How could not sell or dispose of the securities until payment of the note was demanded and refused. (Lewis a. Graham, 4 Abbott# Pr., 106; Wilson a. Little, 2 K. Y. (2 Oomst.), 443; Stearns a. Marsh, 4 Den., 227; Edw. on Bailm., 248.) If the note had been transferred to the defendant along with the securities, an equitable action might be maintained to compel the defendant to restore the securities upon the payment of the- principal debt, where he had refused to do so after an offer to pay the debt; or after a'tender and refusal, an action of tort might be maintained for damages; or upon a tender of the amount of the debt to How, or upon the payment of the note held by him, an action for damages would lie against, him upon his failure to restore the securities; or upon a tender of payment to How, an action for damages would lie against' the defendant, after a demand and refusal on his part to return the securities, for, as he acquired no greater right than How possessed, he would be obliged to restore them when it became the duty of Brown to return them. But an equitable action for an accounting could not be maintained against the defendant unless How was made a party, as otherwise the respective rights of the different parties could not be adjusted. The action was brought for an accounting without joining How as a party defendant, and the judge very properly held that it could not be maintained in its form as an equitable action; but upon the facts stated in the pleading, and upon the authority of Marquat a. Marquat (12 FT. Y. (2 Kern.), 336), he converted it into an action at law for the recovery of damages, and he gave judgment as in an action for tort. This, I hold, he could not do (Reubens a. Joel, 13 FT. Y. (3 Kern.), 488; Fire Department of the City of FT. Y. a. Harrison, 2 Dili., 455), as it involved a different mode of trial, and took away from, the defendant the right of trial by jury which is secured to a defendant in every such action by the Constitution. Unless the parties had waived that mode of trial in the manner prescribed by law, an action to recover damages for a tortious conversion of property could be tried in no other way. No such consent appears to have been given, and the judgment was therefore erroneous.

Hilton, J., concurred.

Present, Daly, R J., Beady and Hilton, JJ.