Majority
p. 774Henry T. Duryea, Resp’t, v. William D. Andrews et al., App’lts. (Supreme Court, General Term, Second Department, Filed December 8, 1890.)
Headnote
Conversion—Limitation.A horse was stolen'from plaintiff in 1873, and subsequently came into defendants’ possession, but plaintiff did not know of that fact until 1889. In an action for conversion, Held, that the horse having been stolen, its possession in contemplation of law was in plaintiff until demand for its delivery was made, and that the statute of limitations did not begin to run until such demand was made.
Appeal from judgment in favor of plaintiff, entered on verdict. This was an action commenced December 24,1889, for the conversion of a mare which was stolen from plaintiff by one Bolán in 1873, and subsequently came into defendants’ possession. . Damages were laid at $500.
The complaint showed that the plaintiff first knew of defendants’ possession of the mare on October 6, 1889. Hone of these statements were controverted by the answer or upon the trial, except the question of value, and the only other issue was the defense of the statute of limitations.
It was admitted on the trial that a written demand for the mare was duly served upon the defendants on December 18 and 20¡ 1889. The jury found for the plaintiffs and assessed the damages at the sum of $250, and from the judgment entered on such finding the defendants appeal.
William Man, for app’lts; Edward Cromwell, for resp’t
The judgment in this action must be affirmed. The only defense interposed was that of the statute of limitations, and that statute did not begin to run until the demand for the delivery of the horse in question was made, on December 10, 1889. The horse having been stolen, its possession until such demand was in contemplation of law in the plaintiff, as he was its legal owner.
Judgment and order denying new trial affirmed, with costs.
Dykman, J., concurs; Barnard, P. J., not sitting.