99 N.Y.S. 412 | N.Y. App. Div. | 1906
On November 1, 1897, the defendants, a firm of stockbrokers, then in liquidation, sent a statement to Byrne showing his indebtedness to it of $600,000 and that it held his. securities against such indebtedness. The upshot of interviews and correspondence was an offer by Byrne to pay that debt if the defendants would deliver his securities to him, and an acceptance of such offer by defendants. At the appointed place and time, November 10,1897, tender of that
The principal question on this appeal is presented by the. ruling in exclusion of testimony offered, to establish a defense. The complaint of conversion is, so to speak, based not upon cepit but cletinet, and the plaintiff was bound to show, an existing right to the imme-. diate actual possession of the securities'-at the time of the alleged conversion. (Smith v. Smalley, 19 App. Div. 519, and authorities cited.) And, therefore/ the deféridants were entitled to show that at the time of the alleged conversion the immediate right to such possession was in a third person. ^ For if so it was not in the plaintiff, and if’ not in the plaintiff he could not complain of such a conversion. Such evidence did not necessarily attack plaintiff’s title, but necessarily challenged his then right of immediate actual possession and thus tended to absolve the defendants from a chaige of conversion. And it. was' in any event admissible tinder -thé general denial, pleaded by the defendant. (Griffin v. Long Island R. R. Co., 101 N. Y. 348, 353 et seq.; Ontario Bank v. N. J. Steamboat Co., 59 id. 510; Siedenback v. Riley, 111 id. 560.) Flow the version of the defendants that Was excluded is that they; arid the plaintiff were joint venturers, in schemes requiring large, sums of money which had. been raised upon the notes and obligations of the defendants seen red. by the pledge of securities, includ-. ing the securities of the plaintiff or part of them ; that at the time of the alleged con version such securities Were out at-such pledge; that' the' common ventures had proved unprofitable"; that the debt behind that pledge Was undischarged and that the' pledgee was in possession of the'pledge.- "
It is to be noted that the defendants do not assert that this pledge was made by them for their own benefit perforce of. their possession of the bonds and their- interest therein as collateral for the debt of the plaintiff to them. If this were the fact, then the tender of
If it be asked then why the defendants, in view of an existing lien, undertook to deliver the securities, upon payment of their indebtedness from the plaintiff, which did not in law release the securities from tlie pledge,, it may be suggested . that they supposed that they could regain tlie securities^ perhaps by substitution, perhaps by payment of the $600,000 for their withdrawal, although not strictly entitled thereto, and yet thereafter found the pledgee inexorable. And it may be asked, on the other hand, why the plaintiff offered' to pay the indebtedness if- the defendants would restore the securities, provided lie knew that he was absolutely entitled to them upon' such tender Or payment, or else could hold the defendants for a conversion. "If he knew or had.reason to suppose that, the securi.ties were "with others subject to such a lien as is asserted by the '■ defendants, he may have -counted himself happy upon such a deliverance. If the plaintiff knew of such a lien or .had reason to suppose that it existed under his assent in the common venture, he cannot say that the defendants cannot be heard to assert that lien in defense fo this action,, simply because they stated his indebtedness to them. Upon tender and demand their .answer was that they regretted they would be unable to deliver the securities and they did not. thereby take any distinct ground that precluded ¡them from ' this ■ defense in conversion. (Everett v. Coffin, 6 Wend. 603.) As the evidence in support of the version .of the defendants is not before us, we cannot, determine whether it is cogent and convincing, or improbable and flimsy. . It may carry conviction despite the ' other evidence; it may invite incredulity upon its face or upon comparison, . That-.is not the question now up,- It suffices that we cannot see -that- the defendants are not prejudiced by the exclusion. ■
I think: that the defendants were entitled to offer it, and that the
Hirschberg, P. J., Hooker, Rich and Miller, J J., concurred.
Judgment reversed and new trial granted, costs to abide the event, , -