Dexter v. Dexter — 23 N.Y. St. Rep. 208

Majority

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Nellie L. Dexter, App’lt, v. Edward Dexter, Resp’t.

(New York Superior Court, General Term,

Filed April 15, 1889.)

Headnote

1. Conversion—By assignee—What must be shown to establish— When complaint rightfully dismissed.

In order to establish a conversion as against an assignee for the benefit of creditors, who had simply taken the property of his assignor, it is necessary to show that a demand had been made upon him, and that he had refused to deliver the goods; and not even if such demand and refusal are shown if, before the time of the demand, the goods had been destroyed by fire, without any fault or negligence on his part.

2. Same—Proof—When refusal to permit not error.

Where, after the plaintiff had rested her case, and the court had intimated its intention to dismiss the complaint, the plaintiff offered to show that her assignor, to whom the goods belonged, was in fact driven away from the house where they were stored, and that the defendant knew this before the assignment to him was made, and before he took the goods, and the trial court refused to permit such proof to be made, Held, not error.

Appeal from a judgment dismissing the complaint on trial before a jury.

Alexander Thain, for app’lt; Hawkesworih & Bankine and Jacob F. Miller, for resp’t.

The action was brought by the plaintiff to recover damages for the conversion of certain goods. The evidence shows that the goods were taken by the defendant, as the assignee, for the benefit of creditors of one John W. Dexter, and that at the time the goods were taken by the defendants they were in the possession, and under the control of the said John W. Dexter.

It was held by this court in the case of Goodwin v. Goldsmith ( 49 Supr. Ct. Rep., 101 ), that in order to establish a conversion as against an assignee, for the benefit of creditors, who has simply taken the property of bis assignor, it

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is necessary to show that a demand has been made upon him and that he has refused to comply with such demand.

A demand was alleged in the complaint and was admitted by the answer. But'it was shown on the trial that at the time this demand was made, the goods had been destroyed by fire, without any fault or negligence on the part of the defendant.

It was held by the commission of appeals in the case of The Salt Springs National Bank v. Wheeler ( 48 N. Y., 492 ), that a demand and refusal to deliver do not establish a conversion where, at the time of the demand, the property in question is not in existence, and that the accidental loss or destruction of an article by one lawfully in its possession is not a conversion. For this reason we are of the opinion that the complaint was rightly dismissed.

After the plaintiff had rested her case, and after the court had intimated its intention of dismissing the complaint, the plaintiff offered to show that her assignor, to whom she alleged the goods, in fact, belonged, was driven away from the house in which the goods were stored, and from which they were afterwards taken by the defendant, and that the defendant knew of this fact before the assignment was made to him and before he took the goods. The court refused to allow the plaintiff to show this fact. Under the circumstances of the case, as shown in the papers in this appeal, we cannot say that it was error in the court not so to allow the plaintiff to reopen her case.

The judgment appealed from is affirmed, with costs.

All concur.