Ryerson v. Ryerson — 30 N.Y. St. Rep. 375

Majority

p. 375

Milly Ann Ryerson, Resp’t, v. Edward F. Ryerson, App’lt.

(Suprema Court, General Term, Second Department,

Filed February 10, 1890.)

Headnote

1. Conversion—Refusal to deliver.

When a person upon written demand for delivery of goods states that he will see his lawyer, and does not thereafter make any proposal to deliver, his silence and inaction are equivalent to a refusal.

8. Same—Evidence of authority to make demand.

Evidence of the conversation by which the agent was authorized to receive the goods is admissible to show his authority to make the demand.

3. Same—Husband and wife.

A wife may maintain an action for conversion against her husband.

Appeal from judgment in favor of plaintiff.

Action for conversion of certain household furniture, wearing apparel and personal property.

The parties are husband and wife.

J. J. Beattie, for app’lt; Geo. W. Greene, for resp’t

The testimony of the agent that delivered to defendant the written demand of plaintiff for the goods in question sufficiently shows a refusal to deliver.

Defendant said he would consult a lawyer, went to the lawyer’s office, and after his return made no proposal to deliver the goods although the parties met on numerous occasions.

Under the circumstances silence and inaction were equivalent to a refusal.

The admission of the evidence of the conversation by which the agent was authorized to receive the goods was not error. It was not introduced “ to bind the defendant,” but to show that the agent had authority to demand and receive the goods, and was

p. 376

competent for the purpose. It is of the same nature as was the written paper which gave such authority.

Upon the question of the ownership of the property the evi- ' clence was conflicting. The referee did not follow the evidence of either party in its entirety. It is evident that the testimony was carefully weighed, and so far as we can judge from the printed record a correct result has been reached.

We do not understand the recent decisions cited by appelant to determine that a wife cannot maintain an action against her husband for tortious acts respecting the wife’s property.

If it be that a husband is properly made a defendant in an action brought by a third party for the wife's tort, we do not think it necessarily follows that a wife cannot maintain an action against him for an injury to her rights of property.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.