73 N.Y.S. 796 | N.Y. App. Div. | 1901
The complaint alleges that the defendants wrongfully trespassed upon the plaintiff's real estate, and took from her possession eight cows and two yearlings, and converted them- to their own use. The specific value of the property is stated, and the general damage claimed at a larger amount. The plaintiff and her husband had been farm tenants of the defendant Collins from the spring of 1889 to January, 1899, when the farm upon which they were residing was sold under foreclosure, and the title passed to one Babcock, under whom they continued in possession until April, 1899, when the alleged trespass and conversion was committed. The testimony showed that when plaintiff and her husband moved upon the farm there was a verbal arrangement with Collins, subsequently reduced to writing, that they should work the farm on shares, each to furnish half the stock and have half the avails and increase. After the title to the farm had passed from Collins under the foreclosure, he demanded a division of the cattle, and the plaintiff denied that he had any right in them, and refused to divide, and forbade his taking any of them. Defendants Hand and Kunlcer had some lien on Collins’ alleged interest, and the three, assisted by Van Alstyne, forcibly broke into plaintiff’s stables, sorted out one-half the cattle, and drove them- away. Shortly after, Collins, with the consent of Hand and Kunlcer, sold the cattle. The plaintiff’s testimony tended to show that she was the owner of all the cattle, and that Collins had no interest in them; and she and her husband testified then when they came upon the farm they brought 14 head of cattle there, and that Collins agreed to pay for half of them, but never did so, and subsequently released to the plaintiff, or her husband, all claim in the increase or avails of that class of stock; and that the cattle then on the farm
The main contention of defendants on the trial under review seems to have been that the division was fair, Collins having taken one and set apart another for the plaintiff, and then offering to let the plaintiff choose either herd; and that the property was divisible by nature, and therefore Collins had a right to take away and sell his half. The trial court held that the cattle were not divisible by nature, and in this he was manifestly right. They were not, in their nature, separable in respect to quality or quantity by weight or measure, so that they could be severed, and each take his share. Brown v. Burnap, 17 App. Div. 129, 133, 45 N. Y. Supp. 149; Dear v. Reed, 37 Hun, 594. The court was also right in ruling that the plaintiff might maintain an action for trespass, even if her husband was co-tenant of the farm with her. In actions for tort the nonjoinder of a co-tenant is not ground for dismissing the complaint, because that defect is deemed waived unless the objection is taken by demurrer or answer. Zabriskie v. Smith, 13 N. Y. 322, 64 Am. Dec. 551. But, on the theory that the plaintiff and Collins were joint owners of the property, the court was manifestly wrong in laying down the rule that the plaintiff could recover the full value of all the cattle which the defendants took away and sold. If Collins had a half interest in them,, he had a half interest in each head which he took away, and the plaintiff had only the remaining half interest which could be ■ converted. If liable at all, therefore, under such conditions,. he was liable only for converting the share or interest which the plaintiff owned. In an action for conversion one co-
The utmost value proved of the entire property converted was $380. While the trespass was unauthorized and unlawful, there was no special damage done, except the breaking of a board and a couple of locks, and it is fair to assume that the jury allowed only a few dollars for the trespass, and allowed the whole amount of $380 as the value of the cattle in arriving at their verdict of $400. The motion to set aside the verdict as excessive, therefore, brings up for consideration the rule of damages laid down by the court. De Lavalette v. Wendt, 11 Hun, 432. The highest entire value of the cattle taken and sold, as proven, being $380, the verdict was therefore too large by one-half that amount.
As to the defendants Collins, Kunker, and Hand, the judgment should be reversed, with costs to abide the event, unless the plaintiff stipulates to reduce the damages to $210, and, if the plaintiff so stipulates, the judgment should be affirmed, without costs of this appeal. As to the defendant Van Alstyne, the judgment should be reversed. Assuming that he assisted in the original taking of the cattle, there is no testimony that he did any breaking of the locks or gates, or did anything more than attempt to keep the cattle together. In the selling—which was the principal element of the conversion—he was a simple spectator, and had nothing to do with it directly or indirectly. As to him, the judgment should be reversed,, but, the appeal being a joint one, it is without costs to him. All. concur, except CHASE, J., who dissents.