Fitchett v. Canary — 38 N.Y. St. Rep. 531

Majority

p. 531

Warren N. Fitchett, Resp’t, v. Thomas Canary, App’lt.

(New York Superior Court, General Term,

Filed May 4, 1891.)

Headnote

1. Leen—Livery stable keeper—Relinquishment.

A livery stable keeper, who sells out his business to another and allows him to take charge of the horses kept therein without some arrangement by which the vendee is to hold the property for the vendor’s benefit and the preservation of his lien for keeping the same, thereby relinquishes such lien.

2. Same—Conversion.

Plaintiff’s horse was sold at auction to satisfy a claim of defendant. At such sale defendant purchased it for plaintiff at his request, but shortly thereafter removed it from the state without plaintiff's consent. Held, that such removal constituted a conversion.

The action was for the conversion of a bay horse, buggy and harness belonging to the plaintiff. The defendant admits the ownership of the property by the plaintiff, and alleges in defense that the property was sold at auction to satisfy a claim due to the defendant, and that at such sale the defendant at plaintiff’s request bought the property in at $240, and that the plaintiff then pledged the same with the defendant as security for all his charges aggregating $342.16. The defendant did board and feed the horse until J une 1, 1888, when he sold his stable to Heineman Bros., and they took possession of the plaintiff’s property and charged the expense of caring for it to him. They subsequently changed the charge to the defendant, but no arrangement was made between the latter and Heineman Bros., that the property was to be kept on his account or in preservation of his lien.

p. 532

The plaintiff denied the alleged pledge of the property, which was after the sale removed by the defendant to Hew Jersey without the plaintiff’s permisssion.

The acts aforesaid constitute the conversion complained of. The jury rendered a verdict in favor of the plaintiff for $900. A motion was made on the minutes for a new trial, and from the judgment entered on the verdict, and the order denying the application for a new trial, the defendant appeals.

A. I. Sire, for app’lt; Chas. Blandy, for resp’t.

The defendant waived his lien when he transferred the stable to Heineman Bros., and delivered the plaintiff’s property to them, under a new arrangement, by which the expense of keeping it was charged to the plaintiff. Heineman Bros, became the plaintiff’s agents, their possession his possession, and this voluntary surrender was a relinquishment of the defendant’s lien, which could only be preserved by some understanding made .at the time, by which the Heinemans were to hold the property for the benefit of the defendant and for the preservation of bis lien. See Geneva, etc., R. R. Co. v. Sage, 35 Hun, 95 ; Bigelow v. Heaton, 4 Den., 496 . No such arrangement was ever made. The answer does not plead a stable keeper’s lien given by the statute, Laws 1872, chap. 498; Laws 1880, chap. 145, nor a common law lien by agreement of the parties, but a sale by the plaintiff’s authority, a buying in by the defendant on plaintiff’s account, and a subsequent pledge until $342.16 was paid.

The plaintiff denies that any such understanding was had or agreement made. The conflict was submitted to the jury, and they adopted the plaintiff’s theory that no such contract or pledge was made.

The defendant, shortly after the auction sale, removed the property to the private stable of one Sire, at no. 211 West Fifty-eighth street, where it remained a few days under defendant’s control, and from thence it was removed by him to the farm of Sire, at Morris Farms, New Jersey, and from there to the farm of the defendant at Hew Brunswick.

There being no lien, and no sale divesting the plaintiff’s title, the removal of the property out of the state, without the consent of the plaintiff, was an unwarranted assumption of control of his property, not justified by necessity or by any warrant whatever, and constitutes in law a conversion for which the defendant is answerable. Cow. Tr., § 629 ; 2 Hilliard on Torts, 4th ed., 32 et seg. The defendant had no more right to take the plaintiff’s property to Morris Farms or Hew Brunswick than he would have to take it to Texas or to Europe.

Assuming to one’s self the property and right of disposing of another man’s goods is a conversion. The fact that the defendant comes lawfully into possession forms no objection to the action. It is the breach of the trust or the abuse of such lawful possession which constitutes the conversion. Murray v. Burling, 10 Johns., 172 . The using a thing without the license of the owner, or contrary to it is a conversion. Assuming the right to dispose of it,

p. 533

or exercising dominion or an unwarranted control of it is a conversion.

Any asportation of a chattel for the use of the defendant or some third person, is a conversion of it, because it is an act inconsistent with the general right of dominion which the owner of the chattel has in it, for he is entitled to the use of it at all times and in all places to suit his pleasure. Addison on Torts, 3d ed., 310.

The jury upon ample evidence as to value, assessed the damages at $900. The verdict is sufficiently sustained by the proofs, and is not excessive in amount. The exceptions taken are without merit, and the motion for a new trial was properly denied.

For these reasons, the judgment and the order denying the motion for a new trial must be affirmed, with costs.

Sedgwick, Oh. J., concurs.