Siedenbach agt. Riley.

SUPREME COURT.

LOUIS SIEDENBACH, plaintiff and appellant, agt. JULIA A. RILEY, as administratrix, &c., of THOMAS M. RILEY, deceased, defendant and respondent.

Replevin-The issues capable of being tried in such an action.

Where a sheriff has attached goods under process against one Toledo, and the plaintiff claims title through the same person, it is entirely irrelevant who owns the goods if Toledo does not.

A denial of plaintiff's title alone is not a good defense.

If the bill of sale to plaintiff was bona fide and was followed by possession, plaintiff is entitled to recover.

These are questions for the jury.

A failure to give possession only raises a presumption of fraud which may be rebutted by proof that the transaction was fair.

No need of a demand if the complaint averred an unlawful detention.

Second Department, General Term, May, 1885.

Before BARNARD, P. J., and DYKMAN, J.

APPEAL from judgment dismissing the complaint and directing judgment against the plaintiff for $7,440.

The action was brought to recover certain chattels, of which the plaintiff claims to be the owner, of the value of about $7,500, and for damages for the detention thereof. The chattels consisted of 1,000 Remington rifles, etc.

The answer made by the intestate, who was the sheriff of the county of Kings, denied the wrongful detention, averred that the defendant had not any knowledge or information sufficient to form a belief that the goods, or any part of them, were the property of the plaintiff, and then proceeded to set forth that, as sheriff of Kings county, on the 29th day of December, 1879, he had seized the property under a warrant of attachment issued in an action in which De Witt C. Farrington was plaintiff and Roderigo Toledo was defendant, and that at that time the said property was either the property

Siedenbach agt. Riley.

of said Toledo or that he had a leviable interest therein. The answer did not deny the taking of said property; nor did it allege ownership in the republic of Honduras.

The plaintiff derived his title to the rifles, &c., by a bill of sale dated 21st July, 1879, from said Toledo, which it was claimed was followed by change of possession within a day or two thereafter, and at the time of the levy of the attachment the chattels were at the Brooklyn Navy Yard on storage, to the order and credit of plaintiff.

On the 29th day of December, 1879, some six months later, the attachment before referred to was levied on said chattels, the sheriff claiming they were the property of said Toledo, or that he had an attachable interest therein.

At the trial term, at the close of all the evidence on both sides, the court below dismissed the complaint and directed the jury to award judgment in favor of the defendant (the sheriff) for $7,440, the value of said rifles.

The ground upon which the court directed a verdict dismissing the complaint, was that by the terms of the contract between "D. W. C. Farrington, treasurer of the Lowell Battery Gun Company and R. Toledo, esq., special commissioner for the republic of Honduras," the property in question was owned by said republic of Honduras, and denied leave to the plaintiff to go to the jury upon the question whether the title to the property was in Toledo at the time he sold it to plaintiff.

Charles Blandy, of counsel for appellant (Richard S. Newcombe, attorney).

Benjamin F. Butler, of counsel for respondent (Morris & Pearsall, attorneys).

BARNARD, P. J. Both parties claim under the same title. The plaintiff claims under a bill of sale from one Toledo, and the defendant under an attachment against Toledo. It is entirely irrelevant who owns the goods under the pleadings

Siedenbach agt. Riley.

if Toledo does not. The evidence at least presumptively showed a title in the plaintiff derived from Toledo and accompanied by possession. The defendant levied upon the property as property of Toledo, and there is no claim of title through any other party authorizing the creditor to attack Toledo's title (Smith agt. Hall, 67 N. Y., 48). It was always a law in this state that a denial of plaintiff's title alone is not a good defense (Eustice agt. Holmes, 3 Denio, 244).

This conclusion leaves only questions of fact in the case. Was the bill of sale a genuine, real bona fide bill of sale? Was the possession given over of the goods? If these two questions are answered affirmatively, the plaintiff is entitled to recover for the plaintiff's bill of sale and the delivery if possession under it ante-date the levy. Both questions are for a jury (Blount agt. Gobler, 77 N. Y., 451; Juillard agt. Chaffee, 92 N. Y., 529; Powell agt. Powell, 71 N. Y., 71). If the change of possession was not absolute and immediate and continued, the good faith of the transaction may still be shown to the jury, for the failure to give possession only raises a presumption of fraud which may be rebutted by proof that the transaction was fair. In the evidence as taken the proof of change of possession is abundant. If the proof is to be credited all dominion over the property was delivered to the plaintiff and received by him. There was no need of an amendment of the complaint in respect to a demand. An averment in a complaint that the defendant unlawfully detains the plaintiff's property is made out by proof of a demand. It is never necessary to plead the evidence.

The judgment should be reversed, with costs to abide event, and a new trial granted.

DYKMAN, J., concurs; PRATT, J., not sitting.

VOL. II 19

Matter of the Attorney-General agt. Atlantic Mutual Life Insurance Co.

SUPREME COURT.

In the Matter of the ATTORNEY GENERAL agt. THE ATLANTIC MUTUAL LIFE INSURANCE COMPANY. (Petition of WILLIAM BARNES.)

Corporations - Receiver — When and how far corporations attacked by the state for insolvency may use their corporate funds after the appointment of a receiver.

Corporations attacked by the state for insolvency can, even after a receiver is appointed, use their corporate funds for their own protection in the litigation if their action is taken in good faith and with a reasonable hope of success in the controversy.

Third Department, General Term, June, 1885.

Before LEARNED, P. J., BOCKES and LANDON, JJ.

LANDON, J. — Reviewing the discretion exercised by the special term in allowing to the petitioner compensation for his services rendered for the company after the receiver of its property had been appointed, we conclude that a case was presented justifying an allowance within the opinion of the court of appeals in Barnes agt. Newcomb (89 N. Y., 108), rendered upon the claim in question.

First. The company appears to have been deprived of its property and business upon a contested allegation of insolv ency. The property was great, and there were reasonable grounds for the company to hope that upon appeal the order depriving it of its property would be reversed.

Second. After the appointment of the receiver the statute (chap. 902, sec. 8, Laws 1869) required that a competent actuary should examine the condition of the company and report whether its assets were sufficient to enable it to meet its obligations matured and to mature. The liabilities of the company upon existing policies could, from the nature of the

Matter of the Attorney-General agt. Atlantic Mutual Life Insurance Co.

case, only be estimated. The actuary made his report. It was adverse to the company. But the principles upon which he made the estimate of maturing liabilities were at that time not well established. If a different basis had been adopted, the solvency of the company would have been shown, and thereupon it would have been competent for the court in its discretion to reinstate the company in its property and business. That the company should contest the accuracy of this report in the courts was a natural and reasonable step for it to take in its struggle for existence.

Third. Pending the litigation, the assets of the company so appreciated in value that they appeared to exceed its liabilities. Upon this ground the company applied to the court to be restored to its possession and be allowed to resume business. The effort was unsuccessful, mainly because it was felt by the court that a life insurance company, discredited by hostile litigation at the suit of the state, could not with safety to its policyholders be permitted to resume business (74 N. Y., 177; 77 id., 336).

Thus the company struggled under circumstances which gave some promise of success in every way open to it to recover its vast property and resume its business. Its entire good faith in making the struggle is found by the court below, a finding which seems unquestionable under the circumstances.

Order affirmed, with costs and disbursements.

BOCKES, J.-Under the order of reference the referee, after a full hearing, has, as he was authorized to do, certified to the court the value of the services in controversy and his opinion as to the amount the applicant should receive or be paid, and further, that the services and disbursements incurred in connection with them were rendered and made in good faith, and with the reasonable and well grounded belief that the proceedings would benefit the company, its stockholders and policyholders; and there is no question but that the proceedings were taken under the sanction of the officers of the