61 N.Y.S. 482 | N.Y. App. Div. | 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 value of the property taken, if you find the defendants, or any of them, were guilty of 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 you find that these defendants or any of them had committed a trespass by entering upon the premises unlawfully, you would have a right to add to your verdict for the amount of the property such damages as you consider reasonable in satisfaction of that trespass; your whole verdict being within, not exceeding, the amount claimed in the complaint, which is $1,000.”
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 cattlé 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 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 cha-rgé “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. Hickock, 2 Caines, 166; St. John v. Standring, 2 Johns. 468; Le Barron v. Babcock, 122 N. T. 153-156, 25 N. E. 253, 9 L. R. A. 625. The cases where an action for a conversion by one tenant in common against another can be
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 concur.