14 N.Y.S. 53 | N.Y. Sup. Ct. | 1891
This action was brought to recover damages for the conversion of an order issued by the board of supervisors of Cattaraugus county, directing the defendant, who was a member of such board from the town of Hinsdale, to pay to the order of Cyrus N. Clark and the plaintiff, Delia E. Clark, the sum of $25, being the amount agreed upon for injuries to ahorse received on the 1st day of November, 1888, through defects in a bridge in the town of Hinsdale. The claim for such injuries had been audited by the town board of the town of Hinsdale before the order was allowed and issued by the board of supervisors. The horse which was so injured belonged wholly to the plaintiff. After the presentation orally of the claim, the same was reduced to writing by one Henry Norton, who inserted the name of Cyrus N. Clark as the claimant. The scrivener was then told by Mr. Clark, in the presence of the defendant, that he had no interest in the claim, but that it was his wife’s, as the horse belonged to her. Thereupon, without taking out the name of Cyrus N. Clark, the name of the plaintiff was added to his, so that the claim stood before both the town board and the board of supervisors in the names-of both husband and wife. The order of the supervisors was in due course.of business intrusted to the defendant as such supervisor of the town of Hinsdale for delivery or payment to the claimants. The defendant, however, being a creditor of the husband, against whom he had a judgment of about $35, recovered in.a justice’s court, instead of delivering the paper to the claimants, placed it in the hands of a constable, who held an execution issued on such judgment, with directions to levy thereunder upon one-half of the order. It was shown that the value of the order so converted by the defendant was the sum of $25, for which judgment was given, besides costs, which was affirmed by the county court, from which judgment this appeal was taken. The date of the order was November 30, 1889. A written demand was made upon the defendant for its delivery, February 14, 1890. This action was begun April 18, 1890. The instructions by the defendant to the constable to levy upon the order made in connection with the delivery thereof to the constable for that purpose was six weeks before the trial, which was had May 3, 1890. It is argued by counsel for the appellant that, inasmuch as the order came lawfully into the hands of the defendant, a demand of its delivery and a refusal of such demand must be shown in order to entitle the plaintiff to recover. The only evidence of a demand consisted of the delivery by a constable of a written demand purporting to have been signed by the plaintiff by her husband as her agent, requiring the deliv