Fitchett v. Nanary

| The Superior Court of the City of New York and Buffalo | May 4, 1891

McAdam, J.

The defendant waived his lien when he transferred the stable to Heineman Bros., and delivered the plaintiff’s property to them, under á new arrangement, by which the expense of keeping it was charged to the plaintiff. Heineman Bros, became the plaintiff’s agents, their possession his possession; and this voluntary surrender was a relinquishment of the defendant’s lien, which could only be preserved by some understanding made at the time, by which the Heinemans were to hold the property for the benefit of the defendant, and for the preservation of his lien. See Railroad Co. v. Sage, 35 Hun, 95; Bigelow v. Heaton, 4 Denio, 496" court="N.Y. Sup. Ct." date_filed="1847-05-15" href="https://app.midpage.ai/document/bigelow-v-heaton-5465459?utm_source=webapp" opinion_id="5465459">4 Denio, 496. No such arrangement was ever made. The answer does not plead a stable keeper’s lien given by the statute, (Law’s 1872, c. 498; Laws 1880, c. 145,) nor a common-law lien by agreement of the parties, but a sale by the plaintiff’s authority, a buying in by the defendant on plaintiff’s account, and a subsequent pledge until $342.16 was paid. The plaintiff denies that any such understanding was had or agreement made. The conflict was submitted to the jury, and they adopted the plaintiff’s theory, that no such contract or pledge was made. The defendant, shortly after the auction sale, removed the property to the private stable of one Hire, at No. 211 West Fifty-Eighth street, where it remained a few days under defendant’s control, and from thence it was removed by him to the farm of Sire, at Morris Farms, N. J., and from there to the farm of the defendant at New Brunswick. There being no lien, and no sale divesting the plaintiff’s title, the removal of the property out of the state without the consent of the plaintiff was an unwarranted assumption of control of his property, not justified by necessity or by any warrant whatever, and constitutes in law a conversion for which the defendant is answerable. Cow. Treat. § 629;.2 Hil. Torts, (4th Ed.) 32 et seq. The defendant had no more right to take the plaintiff’s property to Morris Farms or New Brunswick than he would have to take it to Texas or to'Europe. Assuming to one’s self the property and right of disposing of another man’s goods is a conversion. The fact that the defendant comes lawfully into possession forms no objection to the action. It is the breach of the trust or the abuse of such lawful possession which -constitutes the conversion. Murray v. Burling, 10 Johns. 172" court="N.Y. Sup. Ct." date_filed="1813-05-15" href="https://app.midpage.ai/document/murray-v-burling-5473202?utm_source=webapp" opinion_id="5473202">10 Johns. 172. The using a thing without the license of the owner, or contrary to it, is a conversion. Assuming the right to dispose of it, or exercising dominion or an unwarranted control of it, is a conversion. Any asportation of a chattel for the use of the defendant or some third person is a conversion of it, because it is an act inconsistent with the general right of dominion which the owner of the chattel has in it, for he is entitled to the use of it at all times, and in all places, to suit his pleasure. Add. Torts, (3d Ed.) 310. The jury, upon ample evidence as to value, assessed the damages at $900. The verdict in sufficiently sustained by the proofs, and is not excessive in amount. The exceptions taken are without merit, and the motion for a new trial was properly denied. For these reasons the judgment and the order denying the motion for a new trial must be affirmed, with costs.