Hyperlawhypertext legal database Michalover v. Moses 19 A.D. 343

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Michalover v. Moses

19 A.D. 343 Court N.Y. App. Div. English

Delivered by "Williams, J.:

Contents

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p. 343
Max Michalover, Respondent, v. Marcus Moses, One of the Marshals of the City of New York, Appellant.

Headnote

Conversion — sale of the whole of firm property under an execution against one pm’tner.
A marshal of the city of New York who, under an execution issued against the individual property of one of two partners, takes and sells, not merely the interest of the particular partner in the firm property, hut the whole property, is guilty of such interference with the property of the other partner as renders him liable to such partner as for a conversion of his interest in the firm property.
Appeal by the defendant, Marcus Moses, one of the marshals of the -city of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county -of Hew York on the 1st day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d.day of March, 1897, denying the defendant’s motion for a new trial made upon the minutes.
Abram Kling, for the appellant.
Julius H. Cohn and Herman M. Solomon, for the respondent.

The action was for conversion. The personal property belonged to the plaintiff and one Riñes as copartners, who were equally interested therein.

The defendant, under an execution against Bines individually, took and sold the whole property and not merel/y Bines’ interest therein. This constituted a conversion of the plaintiff’s interest in the property. While the plaintiff might have taken and sold the undivided interest of Bines, and in that event might have delivered the whole property to the purchaser, yet the purchaser would have acquired title to only the interest of Bines, which would have been the undivided one-half, subject to the claims of creditors of the partnership, and he would have been obliged to account to the creditors and the plaintiff for their interest therein, the same as Riñes himself would. When, however, the defendant took and sold the entire property, as the individual property of Bines, he was

p. 344
guilty of a conversion of plaintiff’s interest therein. ( Walsh v. Adams, 3 Den. 125 ; Waddell v. Cook, 2 Hill, 47 ; Zoller v. Grant, 56 N. Y. Super. Ct. 279 ; Berry v. Kelly, 4 Robt. 106; Bates v. Jamies, 3 Duer, 45 ; Atkins v. Saxton, 77 N. Y. 195 .)

Sections 1413 and 1414 of the Gode of Civil Procedure recognize ■ this rule of law, and provide for cases wherein levies may haye been made upon the interest of partners in the property of the copartnership by virtue of executions against individual copartners. (Read v. McLamahan, 47 N. Y. Super. Ct. 275 .)

There- can be no doubt as to the plaintiff’s right to recover, in this form of action. The theory of the right of action is that the defendant, by such -seizure and sale of the whole property, is guilty of such interference with the plaintiff’s rights as constitutes a conversion of his, plaintiff’s, interest in the property.

The judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham JJ., concurred.

Judgment affirmed, with costs.

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