Opinion
June, 1899.
Louis Levy, for appellants.
August P. Wagener, for respondent.
This action was brought in replevin to recover a Jewish bible, alleged to belong to the plaintiff and to have been wrongfully detained by the defendants. The defendant Fingerhut was not served with process and did not appear upon the trial.
The plaintiff recovered a judgment in the court below for a return of the property, or in case a return thereof could not be had, for the sum of $40 and costs.
It was not shown upon the trial that the defendants ever had either the actual or the constructive possession of the property in question.
All the testimony bearing upon that subject, on the part of the plaintiff, was given by plaintiff's witness, Mrs. Keppleman, who testified that the bible was kept at her house; that the defendant came to her the night before the bible was taken away and said that he (defendant) would send the sexton or janitor of the society the next day after the bible, and that when he (the sexton) came, to let him have it; that the sexton came alone the next morning after this conversation and took the bible away. Upon demand being made upon the defendant he denied ever having had possession of the book, and, on the trial, testified that he never had the conversation with Mrs. Keppleman, or that he directed the sexton to get the bible; that he had no knowledge as to where it was.
The testimony on the part of the plaintiff was wholly insufficient to maintain this action.
To sustain an action for the wrongful detention of personal property it must appear that, at the time of the commencement of the action, the defendant had either the actual possession of, or such control over, the property that he might have delivered it to the possession of the plaintiff. Elwood v. Smith, 9 How. Pr. 528; Latimer v. Wheeler, 30 Barb. 485; Wheeler v. Allen, 51 N.Y. 42.
Judgment must, therefore, be reversed.
MacLEAN and LEVENTRITT, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellants to abide event.