Frischman v. Mandel , 56 N.Y.S. 1029 ( 1899 )

Freedman, P. J.

This action is in replevin, and the plaintiffs recovered a judgment against the defendant Fetterer, for the recovery of the possession of two suits of parlor furniture, or in case a return of the property could not be had, the value thereof, amounting to $67.50.

The defendant Mandel was not served with process, and did not appear in the case. The pleadings were oral, but the affidavit upon which the requisition in this action was granted, and which is required by the statute in actions of this kind, does not allege a wrongful taking of the property in question, and only alleges á wrongful detention thereof as against the defendant Mandel. In an action of replevin where the taking is alleged to be wrongful no demand for the return of the property before bringing the action need be averred, but where the action is founded upon a wrongful detention, a demand for the return of the property must not only be alleged but proven. No demand upon either of the defendants in this action was shown to have been made.

Under the circumstances of the case as shown by the testimony, it would appear that the plaintiffs were required not only to show a demand upon the defendant Fetterer, but would also have been compelled to show that he (Fetterer) was not an innocent purchaser for value. The plaintiffs were informed by Mandel when he obtained the property from them, that he (Mandel) intended to sell it. Frischman, one of the plaintiffs, testified that when Mandel got the goods, he (Mandel) said, “ If I sell them (the goods) I will pay you for them; if not you can have your goods back.” Mandel, it appears, did sell the goods to Fetterer. Proof that Fetterer was not a bona fide purchaser for value of the goods, and that a proper demand for their return was made, became necessary on the part of the plaintiffs, in order to maintain this action. Nothing of this kind was attempted by plaintiffs. The testimony, that a receipt marked as an exhibit, but which does not appear in the record, contained the words “ on consignment ” is of no value.

A consignee may, and in this case did, have a right to sell. It may also be said that the defendant Eetterer was shown by uncontradicted testimony to be a bona fide purchaser for full value, and without notice of existing claims against Mandel, or liens against the property.

Judgment must be reversed.

MacLean and Leventritt, JJ., concur.

Judgment reversed, new trial ordered, with costs to appellants to abide event.