121 N.Y.S. 294 | N.Y. App. Term. | 1910
The plaintiff, who was the owner of an automobile, sued the defendant, a city marshal, for damages for conversion. The marshal levied upon the automobile under an execution against the property of the defendant’s husband. After detaining the automobile for sixteen days and before this action was brought, it was, upon a writ of replevin, taken from the possession of the marshal and returned to the plaintiff. The learned court below submitted the case to the jury, upon the theory that it was for them to determine whether or not a levy had been made, and instructed them that, if a levy had been made, the" plaintiff was entitled to recover and that, if no levy had been made, they should return a verdict for the defendant. The plaintiff excepted to this charge. The jury returned a verdict for the defendant. The charge was incorrect and the theory upon which the case was tried was erroneous. The evidence established the fact that the plaintiff was the owner of the automobile and that the marshal took possession of it and retained possession for a period of sixteen days under an execution against the property of the plaintiff’s husband. Upon the evidence there was no question that the'marshal took possession of the plaintiff’s property. This was a conversion of the plaintiff’s property, unless the marshal could justify his action by showing that he took the property under lawful process against the plaintiff. This he failed to do. The only question before the jury was the amount of the damages which the plaintiff was entitled to recover. The court excluded evidence of the use value of the automobile during the sixteen days that the marshal had possession of it. The automobile was not used by the plaintiff for pleasure, but was hired by her to others for profit. The books are .uniform in laying down the rule that, where property
In the case at bar, what the plaintiff in fact lost and what she is suing to recover is the value of the use of the automobile during the time of its detention. We think she is entitled to be compensated for the value of this use for the sixteen days during which she was, by the wrongful act of the defendant, deprived of the use of the automobile.
Lehman and Bijuk, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.