Sluyter v. Williams

37 How. Pr. 109, 1 Sweeny 215

Opinion

By the court,Freedman, J.

The defendant lawfully came into possession of the goods and chattels claimed by the plaintiff in the action, and consequently,he could not be guilty of an unlawful dete*ntion,except,after due demand,and a refusal on his part subsequent to said demand to deliver. It was incumbent on the plaintiff to prove a sufficient demand as a part of his case and as the evidence is totally insufficient upon the point, no error has been committed upon the trial in dismissing the plaintiff’s coniplaint. In the case relied on by the the plaintiff (6 Hill, 613) the goods had been wrongfully talcen, and for that reason no previous demand was held to be necessary.

If the judment entered is irregular in form, the plaintiff’s remedy is by motion at special term and the general term will not upon appeal make the correction in the first instance.

The judgment appealed from should be affirmed with costs.