Flint v. Franzman — 24 N.Y. St. Rep. 89

Majority

p. 89

Cornelius Flint et al., Resp’ts, v. Orris Franzman, App’lt.

(Supreme Court, General Term, Third Department,

Filed May 27, 1889.)

Headnote

Tenants in common—When tenant mat maintain action against co-tenants.

Where one tenant in common of personal property makes an exclusive appropriation of it to himself, in hostility to the right of his co-tenants to its possession and enjoyment, the co-tenants may maintain an action against him.

Appeal by the defendant from a judgment and decision of special term of this court, affirming a judgment of jus tice’s court in favor of plaintiffs.

Action commenced in justice’s court, April 27, 1887, by plaintiffs against the defendant, to recover the value of a musical instrument, commonly called an E flat Tuba,alleged to have been wrongfully converted by the defendant to his own use.

The plaintiffs and the defendant were the owners of the instrument as tenants in common.

G. E. Phillips, for app’lt; Z. S. Westbrook, for resp’ts.

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 property 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 co-tenants can maintain an action against him. Osborn v. Schenck ( 83 N. Y., 201 ), and cases there cited.

Judgment affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.