Moffatt v. Pratt

12 How. Pr. 48

• Court: New York Supreme Court
• Decided: July 15, 1855
• Status: Published

Opinion

Harris, Justice.

The subject of the action is certain prints, which the plaintiff alleges the defendant had wrongfully converted to his own use. It was proper that the plaintiff should describe the property thus converted. He has chosen to do so by referring to the origin and history of the engraving from which the prints had been struck. The description is sufficiently distinct and intelligible. It might, undoubtedly, have been stated more briefly, and, perhaps, in terms less offensive to the defendant, but this was a matter of taste, rather than of legal necessity.

So far as the matter of the complaint embraced in the motion tends to furnish a description of the subject of the action, it cannot be regarded as either irrelevant or redundant. But I think it was quite unnecessary for the plaintiff to state that the “ mechanical necromancy,” by which the head of Sir Robert Peel was struck off, and that of the defendant substituted, was performed “ at the special instance and request of the defendant, and under his dictation and direction.” This part of the statement can hardly be considered as tending to identify the engraving from which the prints in question had been struck. It was obviously designed for an entirely different purpose—one unlmown to the rules of pleading under any system of practice. This portion of the complaint, therefore, must be struck out, as wholly irrelevant.

And so must all that portion of the complaint specified in the second clause of the defendant’s notice. It was enough for the plaintiff to allege that the prints had been wrongfully converted by the defendant to his own use. If the conversion should be denied by the defendant, it may, upon the trial, be allowable for the plaintiff to show that the defendant had distributed the prints in the manner stated, with a view to establish the fact of a conversion. But even then, it would be quite incompetent for the plaintiff to give evidence, even if he were able to do so, to show the motive which actuated the defendant in making such distribution. Whatever may have been the defendant’s purpose, if he has converted the plaintiff’s property, he is liable for its value. He is «liable for nothing more, even though he had been actuated by a motive as absurd and ridiculous as that stated in the complaint.

The defendant having but partially succeeded in his motion, neither party is entitled to costs.