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Simon v. Simon

55 N.Y.S. 915 Court N.Y. App. Div. Decision date 1899-02-07 English

Delivered by WOODWARD, J.

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p. 915
SIMON v. SIMON.
(Supreme Court, Appellate Division, Second Department.
February 7, 1899.)

Headnote

1. Conversion—Right or Action—Title—Possession.
Plaintiff purchased property of a third person, and removed it to a store that he rented in his own name, and defendant was put into possession on the understanding that she should have the property on repaying plaintiff certain sums that he had advanced. Held, that plaintiff might sue for conversion of the property by defendant, absolute ownership and actual possession being unessential to the right of action.
3. Same—What Constitutes Conversion—Asportation.
It constituted a conversion of the property where defendant changed the lock on the store door to bar plaintiff out, and left orders that he be ejected should he gain entrance, asportation not being an essential element of conversion.
Appeal from trial term, New York county.
Action by Samuel H. Simon against Mary E. Simon. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Transferred from First to Second department.
Affirmed.
Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.
Thomas F. Byrne, for appellant.
E. Conway, for respondent.

This action is brought by the plaintiff, husband of the defendant, for conversion of certain goods. Originally, defendant’s sister was a party defendant, but, having died since its commencement, the action proceeded against the defendant alone. There is no question raised on the appeal as to the right of the husband to maintain this action, and the principal matters to which the attention of the court is directed are questions of fact, which have been determined by the jury in favor of the plaintiff, upon evidence clearly warranting such conclusion. There were two questions raised by the pleadings, and tried in the case: First, “was the plaintiff the owner of the property in question on the 18th day of July, 1895, and was he on that day in possession of it?” and, second, “did the defendant, on the 18th day of July, 1895, take and carry away that property?” The authorities in this state are agreed that absolute, unqualified ownership is not necessary in order to authorize a person entitled to the possession of property to sue for its conversion. A person entitled to the temporary possession of chattels for

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a particular purpose may maintain such an action. Phillips v. McNab (Com. Pl.) 9 N. Y. Supp. 526 . It is necessary that “there must have been possession oí the property by the plaintiff, or there must be an existing right to take immediate actual possession.” Petrie v. Stark, 79 Hun, 550 , 554, 29 N. Y. Supp. 881 . The plaintiff in the case at bar had purchased the property of a third person, had removed it to a store in a different part of the street, which he had rented in his own name, and the defendant was put into possession, probably with the understanding that she should have the property on the repayment of certain sums of money which the plaintiff had advanced to put the business upon a paying basis. When the negotiation commenced, the parties were not married. They were married subsequently; and the wife, in charge of the business, induced the husband to go into Pennsylvania, where he formerly resided, to get more money. Later she agreed to repay him the money which he had put into the business. She failing to do this, the husband returned to Yew York, and found himself locked out, the wife having changed the lock on the door, and left orders with a subtenant to eject the plaintiff should he enter the store. On the day in question the plaintiff gained access to the store by means of the key of the subtenant, and, when the defendant entered, demanded the goods or the money which he had advanced. Both were refused, defendant declaring that she would have nothing more to do with the plaintiff, and refused to allow him to accompany her to her flat.

Whether the plaintiff was in actual possession or not is not material. He had a right to take immediate actual possession, and the conduct of the defendant in changing the lock, and in ordering the plaintiff to be ejected, was an assertion of ownership in the defendant which in law amounted to conversion. Boyce v. Brockway, 31 N. Y. 490 ; Pease v. Smith, 61 N. Y. 477 ; Laverty v. Snethen, 68 N. Y. 522 ; Smith v. Smalley, 19 App. Div. 519 , 46 N. Y. Supp. 277 . Nor was it necessary that the defendant should have removed the goods, or carried them away. It was enough to constitute conversion when she, in this manner, denied the right of the plaintiff to possession. “It is enough,” say the court in the case of Pease v. Smith, supra, “that the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it. Yo manual taking on defendant’s part is necessary.” Again, the court say, in the same case: “The assumed act of ownership was inconsistent with the dominion of the plaintiffs, and this is of the essence of a conversion.” The jury has found the facts necessary to constitute conversion, and there are no errors in the case requiring serious consideration.

The judgment and order appealed from should be affirmed, with costs. All concur.

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