Kelly v. Mesier — 47 N.Y.S. 675

Majority

p. 675

(21 App. Div. 253.)

KELLY v. MESIER et al.

(Supreme Court, Appellate Division, Second Department.

October 26, 1897.)

Headnote

Conversion—Damages—Return of Property.

When a wrongful conversion of property is complete, the owner acquires a vested right to recover its value from the person guilty of the conversion; and the latter cannot, without the owner’s assent, return the property converted, either to defeat the owner’s action, or to mitigate damages.

On motion for reargument. Denied.

p. 676

For former report, see 46 N. Y. Supp. 51 .

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.

William L. Mathot, for the motion.

Charles Benner, 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 for the value of the property converted. Hanmer v. Wilsey, 17 Wend. 91 ; Otis v. Jones, 21 Wend. 394 ; Brewster v. Silliman, 38 N. Y. 423 . Alter 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, by operation of law, vest in them.

Motion denied, with $10 costs.

Cases cited

Hanmer v. Wilsey 17 Wend. 91 N.Y. Sup. Ct. p. 676
Otis v. Jones 21 Wend. 394 N.Y. Sup. Ct. p. 676
Brewster v. Silliman 38 N. Y. 423 N.Y. p. 676