Majority
p. 547Cornelius Flint et al., Respondent’s v. Orris Frantzman, Appellant. N. Y. Supreme Court, Third Department, General Term, May 27, 1889.
Headnote
Tenants in common. Conversion.—A member of a musical organization, who, being a co-owner with others of a musical instrument, takes and carries it away without any intention of returning it to the band association, and, upon demand, does not return it, but makes evasive representations, is liable to an action of conversion on the part of his co-tenants.Action to recover the value of a musical instrument, alleged to have been wrongfully converted by the defendant to his own use. The plaintiffs and defendant were the owners of the instrument as tenants in common.
The action was commenced in justice’s court, and judgment rendered in favor of the plaintiffs. From this judg-' ment the defendant appealed to the county court, and the cause was certified to the supreme court, where the judgment was affirmed, and defendant again appeals.
George E. Phillips, for appellant.
Z. S. Westbrook, for respondents.
—Upon the evidence, the justice’s court was authorized to find, and we presume did find, that the defendant, who was'one of the members of the musical organization, and co-owner with the plaintiffs of the musical instrument, took and carried away the instrument without any intention of returning it to the band association. He did not return it upon proper demand, and made representations which the court could properly hold to be evasive. The case was thus presented where one tenant in common of personal property makes an exclusive appropriation of it
p. 548
to himself in hostility to the right of his co-tenants to its possession and enjoyment. In such case his co-tenants can maintain an action against him. Osborn v. Schenck ( 83 N. Y. 201 ), and cases there cited.
Judgment affirmed, with costs.
Learned, P. J., and Ingalls, J., concur.
Cases cited
- Osborn v. Schenck 83 N. Y. 201 p. 548