Serat v. Utica, I. & E. Railway Co. — 2 N.Y. St. Rep. 15

Majority

p. 15

Mortimer E. Serat, respondent, v. Utica, I. and E. R’y Co., appellant.^[1]

(Court of Appeals,

Filed April 30, 1886.)

Headnote

Trover and conversion—Parties—Assignment or chose in "action by FIRM TO ONE PARTNER.

Plaintiff sues for the conversion of certain trestle-work, erected under contract between defendant and a firm of which plaintiff was a member, the materials of which were to belong to the latter. In January, 1883, defendant wrongfully took possession of it, and converted it to its own use. Plaintiff’s partners transferred their interest to him. Held, that lie could recover, and that defendant was guilty of conversion; that defendant’s first wrongful act did not change the title; and that plaintiff’s partners had the choice either to sue themselves, or assign to him.

Appeal from order general term supreme court, third department, affirming judgment for plaintiff.

Brown & Armstrong, for appellant, Utica, I. and E. R’y Co.

Smith & Robertson, for respondent, Mortimer E. Serat.

The plaintiff sought in this action to recover damages for the conversion by the defendant of certain trestle-work constructed for the unloading and distribution of coal. The answer put in issue the material allegations of the complaint. The trial court found, upon evidence to the sufficiency of which no objection is made, that prior to the month of January, 1883, a copartnership existed between the plaintiff, Swift, and Seth Serat, under the name of the Valley Coal Company; that it constructed a trestle-work in pursuance of a contract between the firm, the defendant, and a certain other railway company, but upon such conditions that the materials used in the construction of the trestle-work remained at all times the per

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sonal property of the firm, with the right to remove the same at any time; that in January, 1883, the defendant wrongfully took possession of the materials and trestle-work, and converted them to its own use; that afterwards, on the tenth day of July, 1883, two of the copartners, Seth Serat and Swift, assigned and transferred to the plaintiff: their right, title, and interest in the material and timber used in said trestle-work, and afterwards, before the commence-of this action, and on the twelfth of July, 1883, the plaintiff demanded of the defendant the trestle-work and materials, and the possession of the same; that the defendant refused to give up the works, or the material thereof, or to allow the plaintiff to remove the same. The learned trial judge found that the property was worth $1,500; that it belonged solely to the plaintiff; and that the defendant was guilty of a conversion in refusing to allow the plaintiff to remove the same as demanded. He therefore directed judgment for this amount, with interest from the twelfth of July, 1883. It has been affirmed by the general term.

Upon this appeal the appellant raises two questions: First, whether there can be a second conversion of property; second, whether the findings of fact above referred to support the conclusion of law made by the trial judge. Neither question admits of doubt. The defendant’s wrongful act in January, 1883, did not change the title to the trestle- ’ work, and although its then owners, the Valley Coal Company, might have sued for its conversion, they did not, nor were they bound to do so. Instead of that, two of its three owners chose to sell their interest in the property to the third, and he, after demand, brought this action. The previous wrong on the defendant’s part was no excuse for its failure to surrender the property when demanded, and the action was well brought by its then owner. As against the defendant, at any rate, the property has ceased to be a partnership asset. For anything within the record, the appeal is without excuse, and the judgment should be affirmed.

All concur.