FULLER a. LEWIS

FULLER a. LEWIS. Supreme Court; First District; Special Term, October, 1856. Action for Possession of Personal Property.—Demand.— Assignee. In an action to recover possession of personal property, where the property which is the subject of the action came to the possession of the defendant by delivery from the wrong-doer, and defendant merely detains it,—it is necessary for plaintiff to allege that defendant has refused to deliver it up, upon a demand. This is so where the defendant holds as assignee for the benefit of creditors, from the wrong-doer. Demurrer to complaint. The action was to recover specific personal property; and the ground of objection to the complaint was that it did not show a demand made before suit, and refusal to deliver the property. Mr. Russell, for the demurrer. Hawley & Glover, opposed. [MAJORITY — Clerke, J.] Clerke, J. According to the Code (§ 142) every complaint must contain the facts constituting the cause of action, meaning, of course, all the issuable facts. Therefore, if a demand and refusal are issuable facts, material to the maintenance of the action, whatever might have been the former rule on the subject, they must now be stated in the complaint. It appears to me, beyond question, not only to be a well-established rule but a wise and just one, that, where personal property, the subject of the action, has come into possession of the defendant, by the delmery of the wrong-doer, it is necessary, where the defendant merely detains them, to prove that he has refused to deliver them up upon demand by the plaintiff. (See Ely v. Ehle, 3 Cow., 508 ; Barrett v. Warren, 3 Hill, 350.) And it matters not what was the nature or character of the fraud, by which the property was originally obtained from the plaintiff, or in what character, or in what manner, it was delivered to the defendant, if no fraud or complicity in the transaction can be imputed to him. In the present case, nothing of this kind is alleged in the complaint; and, although defendant is an assignee of the original wrong-doer, as trust for creditors, he was as well entitled to have an opportunity of consulting and determining, whether he should restore the property to the plaintiff, as any other innocent transferee of property. I think, therefore, the demurrer to be well taken. Judgment for defendant, with costs of the term; with liberty to plaintiff to amend on payment of costs.