The only question in this case, is, whether an action for claim and delivery of personal property can be maintained against the wrongdoer after he has parted with the possession of the property.
Contradictory decisions have been made on this question, in the Superior Court, and at different terms of the Su*546preme Court; and the only source from which a settlement of this question can be obtained is the decision of the Court of Appeals on this point. I do not deem it necessary to review the decisions of this court. In Nichols v. Michael, (23 N. Y. Rep. 264,) this question was examined. One ground on which the defendants moved for a dismissal of the complaint was, “ That it appeared that at the time the action was commenced, the defendant had delivered over the goods to Michael, and he could not be responsible in the action.” The motion was denied, and the defendant appealed. J ames, J. says : “ Some conflict has existed, in the courts, on this question whether an action under the Code could be maintained to recover possession of personal property when the defendant had not the possession either in law or in fact at its commencement.” After referring to the cases in 3 Sandf. 707 ; 8 How. 188; and 9 id. 528, he says, the case of Brockway v. Burnap, (8 How. 188,) was reversed at general term, (16 Barb. 309,) and the court held that an action to recover personal property could be maintained, notwithstanding the defendant had wrongfully parted with the possession, before the suit was commenced. This we think is the better rule ; and we concur in the view therein expressed, that the legislature did not intend, by the Code, to abridge the former action of replevin as they found it. In this view of the case, the action properly lay against Pinner, notwithstanding he had assigned and delivered the property to Michael. In the same case, Selden, J. says, p. 270 : “ It is insisted that an action to recover the possession will not lie against Pinner, because he was not in possession at the time of the commencement of the suit, and because his possession was rightful, &c. These objections are, I think, sufficiently answered by the cases, 5 Gar. & Pa. and 9 Mees. & Weis. 19. In the latter case, Parke, B. says : “ Detinue does not lie against him who never had possession of the chattel, but it does against him who once had, but has improperly parted with the possession of it.” And again he says : “If the goods were fraudulently *547obtained, he had no right to retain possession for one moment, and could transfer no such right to his assignee.”
[New York General Term, April 1, 1867.A later case was that of Jessup v. Miller et al. not reported. In that case it was proved that one of the defendants had parted with the property before suit brought, and that the defendant requested the court to charge the jury that there was no evidence to show that this defendant had the possession or control of the property at the time the suit was commenced. The court declined so to charge, and the jury found for the. plaintiffs. Afterwards a new trial was granted, upon the ground, as to this defendant, that the judge erred in refusing so to charge the jury. This order was appealed from, and affirmed by the general term. An appeal was then taken to the Court of Appeals. Mullin, J. delivered the opinion of the court, holding the granting of a new trial erroneous, and the order was reversed and the ruling at the trial was affirmed.
These decisions, I think, establish the doctrine that an action for claim and delivery of personal property may be brought against the wrongdoer, although he has parted with the possession of the property before the commencement of the action.
This case comes within the rule, The defendant was charged with fraudulently obtaining the plaintiff’s property, and with having placed it on board of a vessel and consigned to his uncle in London, and that the defendant had drawn drafts upon the bill of lading, payable when it should arrive. The plaintiff had a right to ask a jury to pass upon these questions, and, if they found the transaction to be fraudulent, to recover in this action.
I think the court below erred, and the judgment should be reversed, and a new trial ordered, costs to abide the event.
Leonard, Ingraham and Suther land, Justices.]