Flint v. Frantzman — 5 N.Y.S. 523

Majority

p. 523

Flint et al. v. Frantzman.

(Supreme Court, General Term, Third Department.

May 27, 1889.)

Headnote

Tenants in Common—Rights inter Se.

Where one tenant in common of personal property appropriates it, and does not return it on demand, and makes evasive representations concerning it, his co-tenants may maintain an action against him for its conversion.

Appeal from special term, Montgomery county.

Action by Cyrenius Flint and others against Orris Frantzman, for the alleged conversion of a certain musical instrument, called a “tuba.” The ac

p. 524

-tian was originally brought before a justice of the peace, who rendered judgment for plaintiffs. Defendant appealed to the county court, and the cause was removed to the supreme court at special term, where the judgment of the justice was affirmed, and defendant appeals.

Argued before Learned, P. J., and Landon and Ingalls, JJ.

G. IS. Phillips, for appellant. II. V. Borst, (Z. 8. Westbrook, of counsel,) •for respondents.

Upon the evidence the justice’s court was authorized to find, .and we presume did find, that the defendant, who was one of the members of the musical organization, and co-owner with the plaintiffs of the musical instrument, took and carried away the instrument without any intention of returning it to the band association. He did not return it upon proper demand, .and made representations which the court could properly hold to be evasive. The case was thus presented where one tenant in common of personal prop■erty makes an exclusive appropriation of it to himself in hostility to the right of his co-tenants to its possession and enjoyment. In such case his eo-ten.ants can maintain an action against him. Osborn v. Schenck, 83 N. Y. 201 , .and cases there cited. Judgment affirmed, with costs. All concur.

Cases cited

Osborn v. Schenck 83 N. Y. 201 N.Y. 1880-12-14 p. 524