Bushman v. Brown — 32 N.Y. St. Rep. 1084

Majority

p. 1084

Ernst Bushman, Resp’t, v. Sarah C. Brown, App’lt.

(Supreme Court, General Term, First Department

Filed July 18, 1890.)

Headnote

Conversion — Unlawful removal of property by landlord.

Plaintiff sued for conversion of personal property and for damages by rain to Ms furniture, etc., which were unlawfully removed from a cottage occupied by him. Plaintiff swore that the property detained was owned by Mm, and there was proof of a demand made on those in charge of the premises for defendant, and that defendant had notified plaintiff that Ms furniture had been set out in good order awaiting his removal. Held, that the case was properly submitted to the jury, and that a verdict in favor of plaintiff would not be disturbed.

Appeal from judgment entered on a verdict at circuit and from order denying defendant’s motion for a new trial.

Howe & Hummel, for app’lt; Frank M. Hardenirook, for resp’t.

The learned trial judge said in his charge in this case that it did not seem necessary to give the jury any instruction upon any question of law, because no question of law arose. It was necessary for the jury to pass upon two questions of fact arising 'out of the twofold claim of the plaintiff, who alleged in the first place that the defendant, being in possession of certain goods belonging to him, had unlawfully converted the same and disposed of them, to plaintiff’s damage in the sum of $145; and the second place that the defendant unlawfully removed the plaintiff’s furniture, bedding and clothing from a cottage which he occupied as a dwelling, and placed the same out in the rain by which the said property was damaged to the amount of $1,000.

Upon this appeal it is argued that the defendant’s motion to dismiss the complaint ought to have been granted because the plaintiff was not shown to be the owner of the property, and because no demand for its return had been proved. The plaintiff swore that the property which was detained belonged to him; and there was proof of a demand, not upon the defendant herself, but upon one of the persons who took charge of the Cliff Cottage Hotel on Statten Island in her behalf. That the defendant was responsible for whatever was done with the plaintiff’s property at that place might well be inferred and doubtless was inferred by the jury from the note in which she informed him that his furniture, goods and chattels had been set out in good order awaiting his removal.

The case was fairly left to the jury upon the issues of fact involved, in a charge to which no exceptions were taken, and the evidence seems to us clearly sufficient to sustain the verdict

p. 1085

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

Van Brunt, P. J., and Barrett, J., concur.