Broughton & Parks v. Whallon

8 Wend. 474 | N.Y. Sup. Ct. | 1832

By the Court, Nelson, J.

That the plaintiff did not accept the responsibility of Clapp absolutely, in discharge of the liability of any other person who might be holden for the plank, I consider as settled by the jury.

The principal question is, whether trespass will lie against the defenc[ant; I am of opinion it will not. No authority or direction was given by him to the boatman to take the plank t*ie plainti8"s> nor Í8 there any assent to, or approbation of the taking by the defendant after the the trespass was committed. On learning that the boatman had made the mistake, instead of justifying the act, or pretending he had any right or authority to do so, the defendant proposed a mode of compensating the owners, and no doubt supposed he had accomplished it, which would have been the fact had Clapp not failed. Most clearly, the admission of the fact that the boatman had taken the plank, and the proposition of payment, which is all the defendant has done, cannot be construed into an assent to, or approbation of the wrongful taking; if they prove any thing, they shew the dissent of the defendant.

If the defendant is to be made accountable to the plaintiffs for the plank, on the ground of the negligence of the boatman, and that he was his servant, and acting in his employment at the time of the taking of them, (upon which we at present, give no opinion,) then the action should have been case and not trespass ; 2 Selw. 841 ; 1 Bos. & Pul. 404 , without resorting to this principle, as it is conceded that the defendant had the plank, and appropriated them to his own use, there can be no difficulty in the remedy.

New trial granted, costs to abide the event.