Louisa Hildreth, Appellant, v. Edward Raffin, Respondent

Louisa Hildreth, Appellant, v. Edward Raffin, Respondent. Second Department, November 18, 1910. Court—jurisdiction of Municipal Court — action of replevin against administrator—when administrator liable in individual capacity. As the Municipal Court of the city of New York has jurisdiction of an action against an administrator or executor as such where the amount does not exceed §500, it is error to dismiss the complaint in an action brought against such representative to recover chattels loaned to the decedent on the theory that the plaintiff’s remedy is in the Surrogate’s Court. Where an administrator assumes dominion over chattels loaned to his intestate and refuses to restore them, an action in replevin may be brought against him individually.- This, because the unlawful detention is his individual act, not that of his intestate. Appeal by the plaintiff, Louisa Hildreth, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 16th day of June, 1910, dismissing the complaint. William Howard, Jr., for the appellant. Beley & Levine, for the respondent. [MAJORITY — Carr, J.:] Carr, J.: The plaintiff sued in replevin to recover possession of certain household goods. The defendant is her son-in-law. According to the ‘ plaintiff’s proofs, she loaned the articles to her daughter, the defendant’s wife. The daughter died and the defendant assumed' dominion over the articles and refused to restore them to the plaintiff. On the trial the. complaint was dismissed on the theory that the plaintiff’s remedy was in the Surrogate’s Court against the defendant as administrator of the deceased daughter’s chattels. When the motion to dismiss was granted there was no proof whatever that the defendant was the administrator of his wife’s estate or that he held the property- in question under claim of such authority.. It was-erf or, therefore, to grant the 'motion to dismiss;. If, however, ■there had been such, proof, it would have been error to dismiss on the theory presented..- The Municipal Court has jurisdiction of an action against “:an administrator or .executor as such, where the-, amount claimed does not exceed five hundred dollars, exclusive of interest and costs.” • (Mum Ot. Act [Laws of 1902, chap. 580],-§. 1, subd. 18, as amd.-by Laws of 1905, 'chap. 513.) It'is true" that this action was not brought against the defendant as administrator “as such,” as provided in the statute,,but against him individually for an act" which he may have done in. furtherance of his duties as administrator, if such he was. This act, however, was a personal act and not representative.. The unlawful detaining of the personal property was done, not by the decedent, but by the defendant himself.' The act of the. defendant created a cause of action, not against the éstate of the decedent, but against himself individually, Under these circumstances, he was sued properly in his individual capacity. (Matter of Van Slooten v. Dodge, 145 N. Y. 327; Anderson v. Thomson, 38 Hun, 394; 18 Cyc. 884.) The judgment of the Municipal Court should be reversed and á new trial ordered, costs to abide the event. " ' Hieschbeeg, P. J., Wpodward, Burr and High, Jj.', concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. ■ •'