Wheeler v. Allen

49 Barb. 460, 1867 N.Y. App. Div. LEXIS 91

• Court: New York Supreme Court
• Decided: June 3, 1867
• Status: Published

Opinion

By the Court, Leonard, P. J.

This action cannot be maintained. The scrip was held by the defendant, on the books of the Great Western Insurance Company, in his own name. The legal title was in him. As the scrip stood in that way for several years, it is a legal inference that it was by the consent or permission of the plaintiff. A demand and refusal to transfer, did not give the plaintiff the title to the scrip. Possession of the scrip, without a transfer, would be of no avail to the plaintiff. • All that the plaintiff could recover (assuming that he could maintain replevin) would be the possession of that which would not avail him, viz : scrip standing in the name of Allen. Such a recovery would be nugatory. But the plaintiff cannot, in my opinion, recover scrip of which the legal title is in the defendant by his permission, in an action of replevin ; or of claim and delivery, which is an action of the same legal nature.

[New York General Term, June 3, 1867.

If the plaintiff desires the identical scrip, his remedy is in equity. If he desires damages only, he can, perhaps, maintain an action on the case.

The verdict and the judgment here are in form, as if the action were on the case ; but are wholly unwarranted in an action for the claim and delivery of personal property.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Leonard, Clerke and Welles, Justices.]