Majority
p. 253Amy C. Kelly, Respondent, v. Louis Mesier and D. W. Hibbard, Appellants.
Headnote
Conversion— the action cannot be defeated by a tender of a return of the property — payment of the judgment transfers title to the defendant.Where the defendant, in an action Brought to recover damages for the conversion of personal property, is shown to have sold the plaintiff’s property without her authority, the latter has a right to recover the value of such property, and the defendant cannot, By a suBsequent return of the converted property, without, the plaintiff’s assent, defeat her action or mitigate the damages.
Semble, that where, in such a case, the defendant has paid a judgment, rendered against him for the conversion of the personal property, the title thereto vests, in him By operation of law.
Motion by the defendants, Louis Mesier and another, for a reargument of an appeal from a judgment of the Supreme Court in favor of the plaintiff,. entered in the office of the clerk of the county of Queens on the 26th day of October, 1896, upon the report of a referee.
The action was commenced against the sheriff to recover the value of a monument sold by him under an execution issued upon a-judgment against the plaintiff’s brother, of which monument the plaintiff alleged that she was the owner. Subsequently the appellants, who had executed a bond of indemnity to the sheriff, were, upon their own motion, substituted as defendants.
The opinion delivered upon the decision of this appeal is reported in 18 Appellate Division, 329.
William L. Mathot, for the motion.
Charles Bennor, opposed.
The point on which the appellants sought to reverse the judgment and which they complain was not noticed in -the opinion delivered, by the court, is too plainly untenable to require extended discussion. When the original defendant, for whom the present appellants have been substituted, assumed to sell the plaintiff’s property without authority, the conversion was complete; and the plaintiff had a right to insist on being paid the value of the property
p. 254
converted. (Hanmer v. Wilsey, 17 Wend. 91 ; Otis v. Jones, 21 id. 394; Brewster v. Silliman, 38 N. Y. 423 .) After the conversion the defendant could not, without the assent of the plaintiff, return the property converted, either to defeat the plaintiff’s action or to mitigate ■ the damages. The' plaintiff could stand on her vested right to recover the value of the property. When the appellants shall have paid the judgment herein, the title to the property will, hy operation of law, vest in them.
The motion should be denied, with ten dollars costs; '
All concurred.
Motion for reargument denied,-with ten dollars costs.
Cases cited
- Hanmer v. Wilsey 17 Wend. 91 p. 254
- Brewster v. Silliman 38 N. Y. 423 p. 254