8 N.Y.S. 17 | N.Y. Sup. Ct. | 1889
Upon the trial of this case it appeared that on the 5th April, 1884, the defendants leased to the plaintiff, for a term commencing April 7, 1884, and ending 28th February, 1885, their farm, together with 16 cows and dairy utensils. The plaintiff was to furnish two more cows. The hay that was raised was to be fed out on the farm, and what hay was on the farm at the end of the lease was to be the property of the defendants. Each was to have one-half of all the crops, the oats to be divided at the end of the lease. There was a further provision that the hay and grain raised on the farm should be fed to the stock named, including one team. The plaintiff took possession, and, among other things, raised the hay, oats, and corn in question. On the 21st December, 1884, the barn on the premises was burned, resulting in the destruction of 13 of defendants’ cows, and 25 to 30 tons of hay. The next day the defendants went to the premises, and took away their other three cows and the hay, oats, and corn in question, being all that was left on the farm of the hay and grain that was raised. It is claimed by the defendants that the parties were, under the lease, tenants in common of the hay, oats, and corn, and that, the defendants having obtained quiet and peaceable possession, and no demand being afterwards made, the plaintiff cannot maintain an action for conversion. The circumstances under which the defendants took possession were somewhat controverted, and the court below, in substance, left it to the jury to say whether the defendants took the property without plaintiff’s consent, and with the intention of converting it to their own use, under a claim of right, in defiance of plaintiff’s rights and interests. The verdict, in effect, affirmed this proposition, and the evidence is sufficient to sustain the verdict. This proposition was as favorable to defendants as they had any right to ask. Under the lease the plaintiff was entitled to the possession until the termination of the term. The oats were not to be divided until then. The hay and grain were all tobe fed out on the place, if necessary, for the purpose of there keeping the stock. The plaintiff liad a right to have it remain there, and in his possession. The occurrence of the fire did not terminate the lease, and it was not so alleged. The taking away by defendants of their remaining cows was voluntary on their part. The plaintiff had two cows and a team that he had a right to feed there on the farm from the hay and grain that was left, and which defendants took. The defendants, therefore, in taking this property from the plaintiff without his consent, took it wrongfully, and no demand was necessary to be afterwards made by plaintiff upon defendants in order to perfect his right of action.
The court below' charged that the plaintiff, if he recovered at all, was entitled to recover one-half the value. This ruling is criticised, in view of the fact that under the lease whatever hay was left at the end of the term belonged absolutely to defendants. The defendants in their answer make no such claim, but do allege a tenancy in common of all the property. It is now rather late to change the position. Still I do not regard this of much importance; for, upon evidence presented by the defendants, it is very apparent that the use which the plaintiff was entitled to have of the hay for the feeding of his cows
The defendants further claim that the court below erred in excluding the evidence offered by them on the subject of their counter-claim. To this it is answered that neither the justice nor the county court had any jurisdiction to try the cause of action set up as a counter-claim, by reason of the amount of the judgment demanded, being $1,200, (Code, §§ 340, 2862:) and that, therefore, it was not available as a counter-claim, (Code, § 2945;) also that, as this action was commenced before the termination of the lease, the counter-claim was not then due; also that it is not connected with the subject of the action, (Code, § 501, subd. 1.)
Considering the subject of the action as the hay and grain which the defendants converted, the counter-claim has nothing to do with that. Assuming plaintiff had not performed all the conditions of the lease, that gave the defendants no right to indemnify themselves by wrongfully taking what was left of the hay and grain. The lease provided security to the defendants in a reservation of a portion of the proceeds of the dairy. The cáse which the defendants seem to most rely on is Carpenter v. Insurance Co., 93 N. Y. 552. There the subject of the action was wood that defendant had wrongfully taken, and the counter-claim was for damages sustained by defendant in the wrongful impairment by plaintiff of the mortgage security of the defendant by the severance of the same wood from the land covered by the mortgage. That does not apply here. There the plaintiff was taking advantage of his own wrong; here it is the defendant that seeks such advantage. The court did not, I think, err in excluding evidence as to the counter-claim. Some other questions are raised, but they do not call for any special discussion. Ho error is disclosed that would call for a reversal. Judgment and order affirmed, with costs.
All concur.
