20 Misc. 320 | N.Y. App. Term. | 1897
The defendants hired from the plaintiff, in 1885, a steam pump and engine at a monthly rent. In 1886 the engine was destroyed, and defendants retained the pump on hire. In 1889 the plaintiff recovered judgment against the defendants for the value of the use of the pump; and thereafter it was agreed that plaintiff should take back the pump which was then on defendants' premises, at the foot of East Seventeenth street, in this city, plain
The obligation rested upon defendants to make return of the pump; and although plaintiff agreed to send for it himself, this did not alter defendants’ obligation, except that they Were entitled thereafter to notice and demand and reasonable time to deliver. AH this, however, they had, and, at the time of the commencement of the action, they were clearly in default and liable to an action for conversion. In the matter of returning property hired, where the contract is silent on that point, the obligation as to delivery is generally regulated by the customs and usages of business at the place of hiring, “ which -are thus silently adopted into the contract.” Story on Bailments, § 384. Plaintiff testified that the custom as to hiring machinery was'to take it away and return it. It is objected that the defendants were not shown to be-acquainted with, that custom, but the rule is that “ one who is engaged in a trade or business is‘bound to know its usages at the place where he acts, and as against himself is presumed by law to have contracted with reference to them. One who is not engaged in the business, but contracts with those who are, may be presumed, in the absence of. evidence to the contrary, to have known its usages and to-have
The letters of plaintiff’s attorney to the defendants, making the demand of the pump, were objected to on several grounds, but not on the ground urged upon this appeal, namely: that the letters contained statements of fact of which there was no proof. Waring v. U. S. Tel. Co., 4 Daly, 233; A motion was subsequently made to strike out the letters on that ground; but that motion was properly denied, because it was not confined to the objectionable portions. The portions containing the demand or notice to restore were admissible and could not be stricken out. A letter written after the commencement of the action to plaintiff’s attorney by defendant Smith’s attorney was produced and an extract read from it, as follows: “My client caqnot deliver the pump, as he cannot identify it.” This was objected to, but no ground of objection was stated, and the exception to the overruling of the objection is, therefore, unavailing.
A motion was made, at the opening of the case, to dismiss the complaint for failure to state facts sufficient to constitute a cause of action and for failure to plead facts as required by section 1721 of the Code. That section refers to replevin actions and no others. This was an action for conversion. As to the general objection to the complaint, it sets forth “ that before and until the times hereinafter mentioned and at such times this plaintiff was entitled to the immediate possession of a certain steam pump, his property theretofore by him let for hire to the defendants.” Then follows an allegation óf demand and refusal by defendants on January 21, 1893." The criticism is that the complaint failed to "allege that the hiring had ended. Levis v. Burke, 20 N. Y. St. Repr. 789; 3 N. Y. Supp. 386, is relied upon. In that case the complaint conL •tained no averment from which it could be inferred that the hiring had "ceased; Here is such an averment in the statement that the plaintiff was entitled to immediate" possession at the time of his demand.
No error was committed in admitting evidence of the value of the pump. It is true, value was not alleged in the complaint; but in an action of conversion such allegation is not necessary, Damages were alleged and must be proved by evidence of value. Connoss v. Meir, 2 E. D. Smith, 314. Nor was there error in' admitting evidence of the value of the pump when new. It might afford some guide to the jury in estimating its value at the time of the demand. It was not error to exclude evidence of defendants’ relations with a certain fertilizing company which was said to be the original bailee or hirer, of the pump; the judgment-roll in evidence conclusively established that these defendants were hirers from the plaintiff. None of the numerous other objections urged by defendants' requires a reversal.
Judgment affirmed, with costs.
McAdam and Bischoff, JJ., concur.
Judgment affirmed, with costs.