Russell v. Willette — 87 N.Y. Sup. Ct. 497

Majority

p. 497

Sarah Russell, Respondent, v. George Willette, Appellant.

Headnote

Action for the conversion of hay taken from land in defendant’s possession — the remedy is by ejectment.

In an action brought to recover the value of a quantity of hay which the plaintiff alleged that the defendant had wrongfully converted to his own use, the answer denied the conversion and set up title in the defendant, alleging that the hay •was tlie product of land owned by the defendant’s principal, and that he took the hay by virtue of authority from the owner of such land.

Held, that as the evidence given upon the trial disclosed that the plaintiff had for many years been in the possession of the land from which the hay was cut, and was in the possession of the same at the time of the cutting and gathering of such hay, a judgment in favor of the plaintiff would not be reversed;

That if the defendant’s principal had a better title to the land than the plaintiff, it must be asserted in an action of ejectment in which the principal could be fully indemnified for mesne profits.

Appeal by the defendant, George Willette, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the county of Franklin on the 15th day of December, 1893, upon the Arerdict of a jury rendered after a trial at the Franklin Circuit, and also from an order entered in said clerk’s

p. 498

office on the 13th day of December, 1893, denying the defendant’s motion for a new trial made upon the minutes.

Chrnles A. Pttrlce, for the appellant.

John P. Relias, for the respondent.

The plaintiff prosecuted this action to recover the value of a quantity of hay which she alleges that the defendant had wrongfully converted to his own use.

The answer of the defendant denied the conversion, and set up title in the defendant, alleging that the hay was the product of land owned by his principal, and that he took the hay by virtue of authority from the owner of such land. The evidence disclosed that the plaintiff for many years had been in the possession of the land from which the hay was cut, and was so in the possession at the time of cutting and gathering the hay.

We do not deem it necessary in this case to discuss the question of the title to this land on this appeal.

It is by no means clear that the plaintiff was not, by virtue of the trust deed under which she took possession of this land, entitled to retain the possession of the same, as that trust was coupled with the duty of supporting the cestui que trust. But we dp not decide that point.

It is enough for the purpose of this action that the plaintiff was in possession of this land and the hay for which the action was brought.

If the defendant’s principal has a hetter title, she must assert it in an action of ejectment, when she can be fully indemnified for mesne profits.

We see no error, either in the rulings of the trial judge on the receipt of, or rejection” of, evidence, or in his direction to the jury, or refusal to set aside their verdict.

The judgment must be affirmed, with costs.

PutNAM and Hebkick, JJ., concurred.

Judgment affirmed, with costs.