37 A.D.2d 959 | N.Y. App. Div. | 1971
Order of the Supreme Court, Kings County, entered October 22, 1971, reversed on the law, without costs, and application (a) for an order of seizure against any and all persons wrongfully holding or wrongfully preventing the taking into possession of 125 cartons of radio speakers owned by the plaintiff and being held at Pier 4, Bush Terminal, Brooklyn, New York, and (b) to add John Doe as a party to this proceeding, granted. The facts are not in dispute. On or about October 15, 1971, the plaintiff learned of the arrival of 125 cartons of radio speakers which it had imported from Taiwan and to which it had title. On October 19th, it demanded of the shipper and the freight agent (the defendants here) that the speakers be turned over to it. The defendants voiced no objection to plaintiff taking possession of the speakers, but noted that the longshoremen’s strike was in progress and that it was impractical for plaintiff to obtain possession of these chattels. Plaintiff regarded this response as a refusal to turn over the speakers and on October 20 it applied for an ex parte order of seizure pursuant to CPLR 7102. The attorney for Local 1814 of the I.L.A. was advised that .the application had been made. He notified the attorneys for the shipper, the freight agent and the stevedoring company, who then appeared before the court. The ex parte application was turned into a full hearing. At that hearing, on October 21, the plaintiff was assured by counsel for the shipper and the freight agent that those parties had no objection to plaintiff going onto the pier and taking possession of its speakers. Sworn testimony to that effect was given hy officers of those parties. The hearing was then adjourned by the court to allow plaintiff to obtain possession of •its property. On the morning of October 22, an attorney for the plaintiff, with a truck and a driver, went to Bush Terminal to take possession of the radio speakers. A short distance past the gate, the truck was stopped by a group of about 50 men who, by threats of physical violence, prevented the truck from proceeding on to pick up the speakers. A police officer was asked to escort the plaintiff’s truck on to the pier to complete the pickup but he declined, stating that it would be unsafe for the attorney and the truck driver to attempt it. When the hearing was resumed, plaintiff’s attorney testified to what had happened. Plaintiff moved to have Local 1814 of the I.L.A. added as a party defendant. That motion was denied. The court denied the application for an order of seizure on the ground that neither the shipper nor the freight agent was wrongfully holding the plaintiff’s chattels and that, while the Union might be preventing plaintiff from obtaining possession of the speakers, it was not wrongfully holding them within the meaning of CPLR 7102. Plaintiff argued that it had established that someone was wrongfully holding its chattels and that a “John Doe” order should issue against that unknown someone. A motion for that relief was denied. We think plaintiff established its right to relief. It is the undisputed owner of the speakers and its right to possess them has been violated by threats and intimidation. This unlawful exercise of dominion and control over plaintiff’s property constitutes a conversion. Interference with the right to possession is the essence of a conversion (Parkway Mgt. Co. v. Wolfson, 32 A D 2d 306, 308). It is not necessary that one take actual physical possession of property to be guilty of conversion. Any wrongful exercise of dominion by one other than the owner is a conversion (Suzuki v. Small, 214 App. Div. 541, 556, affd. 243 N. Y. 590). Nor is a wrongful intention to possess the property of another an essential element of a conversion. It is sufficient if the owner has been deprived of his property by the -defendant’s unauthorized act in assum