Stafford v. Azbell

New York Court of Common Pleas

Stafford v. Azbell

28 N.Y.S. 733, 8 Misc. 316, 59 N.Y. St. Rep. 287

New York Court of Common Pleas·Decided May 17, 1894·Published·Cited by 1 cases

Opinion

PER CURIAM.

We do not think it necessary to take this case under further advisement. It seems to us that the election by the plaintiff of a cause of action in tort made it necessary for him to show that there was a conversion of the money claimed. The mere reception of the money did not constitute a conversion. There is no pretense that there was a demand of this money made at any time. Besides, it is admitted that there was a reciprocal interest in the money; and hence they were tenants in common of it, and an action for conversion cannot be maintained under such circumstances. McMahon v. Rauhr, 47 N. Y. 67 et seq. The judgment must be affirmed, with costs.

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PER CURIAM.

We do not think it necessary to take this case under further advisement. It seems to us that the election by the plaintiff of a cause of action in tort made it necessary for him to show that there was a conversion of the money claimed. The mere reception of the money did not constitute a conversion. There is no pretense that there was a demand of this money made at any time. Besides, it is admitted that there was a reciprocal interest in the money; and hence they were tenants in common of it, and an action for conversion cannot be maintained under such circumstances. McMahon v. Rauhr, 47 N. Y. 67 et seq. The judgment must be affirmed, with costs.

Stafford v. Azbell, 28 N.Y.S. 733, 8 Misc. 316, 59 N.Y. St. Rep. 287 (N.Y. Super. Ct. 1894).

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