Opinion · Appellate Division of the Supreme Court of the State of New York
Menzel v. List
Menzel v. List, 22 A.D.2d 647 (Appellate Division of the Supreme Court of the State of New York 1964)
- Type
- Opinion
- Court
- Appellate Division of the Supreme Court of the State of New York
- Jurisdiction
- New York
- Date
- 1964-10-06
- Topic
- general
How later courts describe this case
- “Demand upon, and refusal of, the person in possession of the chattel to return it being the essential elements of a cause of action in replevin”
Citator
UpLaw has not yet analyzed Menzel v. List. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 19 opinions
Order, entered February 7, 1964, denying defendant’s motion to dismiss the complaint in an action for conversion on the ground of Statute of Limitations and, in the alternative, to dismiss the third-party defendants’ affirmative defense of the Statute of Limitations in the third-party proceedings and denying the motion by the third-party defendants to dismiss the principal complaint on the ground of the Statute of Limitations, unanimously affirmed, with costs to abide the event. The precedents in this State suggest that with respect to a bona fide purchaser of personal property a demand by the rightful owner is a substantive, rather than a procedural, prerequisite to the bringing of an action for conversion by the owner (Gillet v. Roberts, 57 N. Y. 28; 1 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 206.01 and cases cited; 36 N. Y. Jur., Limitations and Laches, § 62; but, see, Restatement, Torts, §§ 229, 899, Comment a, p. 526). If that be so, then the Statute of Limitations did not begin to run until demand and refusal. By extension in reasoning, if the demand is requisite to creating the cause of action, the demand, or more, may also be requisite to creating the breach of warranty upon which the third-party complaint depends, Under the circumstances, it would be desirable that the pleadings in the third-party proceedings not be foreclosed prior to trial. (But see: Joannes Bros. Co. v. Lamborn, 237 N. Y. 207; ef. Moore v. MaddoeTc, 224 App. Div. 401, 410.) Lastly, the record and the submissions by counsel are inadequate to determine the application and effect of Belgian or French law to the facts. Concur — Breitel, J. P., Valente, McNally, Steuer and Witmer, JJ