Opinion
November, 1904.
Charles K. Carpenter, for the appellant.
Robert W.B. Elliott, for the respondent.
The motion was made upon the papers upon which the order of arrest was granted. They consisted of the summons and complaint and an affidavit of the plaintiff. The action was brought to recover damages for the alleged conversion of certain personal property, consisting of household goods and furniture, which are specially enumerated in the complaint and in the affidavit. In substance, the complaint avers that the plaintiff is the owner of a certain house and lot, known as No. 239 Central Park West, in the borough of Manhattan, city of New York, and certain household goods, furniture and articles therein situated and thereafter described; that on or about the 10th day of July, 1900, the plaintiff leased the said premises to the defendant, together with the household furniture, goods and articles situated in the said premises and specified in an inventory annexed to the lease, for the term of five years from the 1st day of September, 1900, at the yearly rental of $3,000; that among the said household furniture, goods and articles belonging to the plaintiff and leased to the defendant by the said lease were the articles which the complaint proceeds to enumerate. The complaint further avers that the defendant failed and refused to pay the rent due on the 1st day of June, 1904, and thereafter on the seventh day of June the plaintiff obtained a final order in summary proceedings, awarding to her the possession of the premises, and that thereby plaintiff became entitled to the immediate possession of the same and of the personal property enumerated; that thereafter and on the 11th day of June, 1904, plaintiff duly demanded of the defendant the return of the personal property, but that the defendant willfully withholds the same and has refused to return the same to the plaintiff, to the plaintiff's damage of $2,500. Then follows a demand for judgment in that amount, together with costs and disbursements. The affidavit reaffirms the averments of the complaint, the only additional statement being that on the eleventh day of June plaintiff attended at the premises for the purpose of taking possession of the same, found the defendant still in possession, that she refused to give up the personal property therein contained and that the defendant had broken and destroyed a large portion of the furniture and replaced it with greatly inferior articles to the damage of the plaintiff. The allegation of value in the affidavit, as in the complaint, is general, being in one instance that the articles are of the value of $2,500 and in the complaint that the plaintiff has sustained damage in a like sum. There is no statement showing the character, condition or value of any specific article enumerated, either in the complaint or affidavit. The enumeration is of articles of household furniture, but whether such furniture was new or old, in good repair or dilapidated, there is no statement and nothing appears from which the court can determine from any description what the true value of the property was. The enumeration of specific articles does not aid in this direction, because they may have been of such a character and in such a condition as to be of a merely nominal value. Nothing appears beyond the bare assertion of the plaintiff as to value, and upon that subject it could have been stated that the articles were five times the value asserted, or five times less than the value asserted, and the court be possessed of no more information as to the value of the articles in the one case than in the other. In Morton v. Chesley ( 3 App. Div. 446) this court held that facts must be stated showing the value of the articles alleged to have been converted, and where there was no statement of the value of the subject-matter of the action and the only information was that the damages for detention were suffered in a given amount, that it was insufficient to support an order of arrest, there being nothing before the court which would enable it to judge of the value of the property and, therefore, there was no basis upon which the court could act; that under such an averment the most that could be claimed was that it authorized a holding to bail in a nominal sum, but an order of arrest will not issue under such circumstances. (See, also, Bloomingdale v. Cook, 35 App. Div. 360.) These cases are conclusive of the question presented by this appeal as nothing farther appears showing the value of the property herein than appeared in these cases; the statement of amount of damage, whether great or small, does not change the condition.
It is extremely doubtful whether the complaint in this case states a cause of action. There is no averment that the defendant ever entered into the possession of any articles. By the terms of the lease, although made in June, it was not to take effect until September, and the complaint is destitute of allegation that on the last-named date the defendant entered into possession of the personal property. The only averment which hints at the subject is that after possession of the premises had been awarded to the plaintiff an attempt was made to obtain a return of the personal property and that the defendant failed to comply with the demand and willfully withholds the same. It is only by inference, therefore, that defendant is shown to have been at any time in the possession of the property and this would seem not to be sufficient. ( Saratoga Gas Electric-Light Co. v. Hazard, 55 Hun, 251; 7 N.Y. Supp. 844.) The affidavit may not be resorted to to help out the averments of the complaint, but if it could be in this case it is as defective in this respect as is the complaint. Without regard to the latter question, however, we place our decision in this case upon the ground first above stated.
It follows that the order denying defendant's motion to vacate the order of arrest should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
VAN BRUNT, P.J., O'BRIEN and LAUGHLIN, JJ., concurred; PATTERSON, J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.