| N.Y. App. Div. | Jul 1, 1899
The case was tried apparently both as an action- of trespass and as an action for conversion.
In its charge to the jury the court said : “ As to the valué of the property taken, if you find the defendants, or any of them, were guilty of a trespass in taking it, you would have a right to find a verdict from the testimony as to the value of that property. I think the extreme amount has been sworn to at $350: And in addition to that, if yon should find that these defendants, or any of them, had committed a trespass by entering u]Don the premises unlawfully, you
It, will thus be observed that the court makes the minimum measure of damages to be found by the jury for the trespass the value of the property taken. As before stated, there was evidence from which the jury might have found that the defendant Collins was the owner of an undivided one-half of the cattle in question, and it seems to be evident that for the mere taking of the cattle, in which the defendant Collins had at least a half interest, the plaintiff could not have suffered damages to the extent of the whole of the value of the cattle, and it seems to us that in that respect the charge was erroneous.
The defendant’s counsel asked the court to charge “ that if a person takes away property from the land or possession of another, property to which they are legally entitled, by. force, that they are not liable for taking that property «as of a conversion, if the property belonged to them.” The court declined to so charge.
If we treat this action as one for conversion, this request was proper and should have been granted. As a general rule an action for conversion will not lie against a tenant in common for taking property of which he is the -joint owner. (Seldon v. Hickok, 2 Cai. Cas., 166" court="N.Y. Sup. Ct." date_filed="1804-08-15" href="https://app.midpage.ai/document/seldon-v-hickock-5463354?utm_source=webapp" opinion_id="5463354">2 Caines, 166; St, John v. Standring, 2 Johns. 468" court="N.Y. Sup. Ct." date_filed="1807-11-15" href="https://app.midpage.ai/document/st-john-v-standring-5472156?utm_source=webapp" opinion_id="5472156">2 Johns. 468; Le Barron v, Babcock, 122 N.Y. 153" court="NY" date_filed="1890-10-07" href="https://app.midpage.ai/document/lebarron-v--babcock-3611798?utm_source=webapp" opinion_id="3611798">122 N. Y. 153,156.)
The cases where an action for a conversion by one tenant in com- - inon against another can be maintained are.where the joint ownership has been ignored or denied, where the person taking the property treats it as his own exclusive property, or the property has been destroyed or so disposed of that the one tenant in -common is deprived of all his beneficial interest in such property. (Byckman v. Valiente, 42 N.Y. 549" court="NY" date_filed="1870-06-05" href="https://app.midpage.ai/document/dyckman-v--valiente-3606188?utm_source=webapp" opinion_id="3606188">42 N. Y. 549; Rodermund v. Clark, 46 id. 354; Osborn v. Schenck, 83 id. 201.)
In this case the joint ownership of the plaintiff in the propérty Was not ignored, but expressly recognized. All the -property was not taken; the undivided interests were ■ attempted to be divided. The defendant Collins had a right that such property should be divided, and while the manner in > which he proceeded to procure
The person so taking such property by force, by entering upon the premises of another, may be liable in, damages for a trespass committed, but hot for a conversion of property in which he has an undivided one-half interest.
Without discussing the other questions raised upon this appeal the judgment should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed and a new trial granted, costs to the appellants to abide the event.