21 Misc. 308 | N.Y. App. Term. | 1897
The plaintiff sued to recover for the alleged conversion of certain planta shipped by his agent from Lenox, Massachusetts, to Orange, New Jersey, via the defendant’s express line as connecting carrier. The contract of carriage" was entered into with, and the plants delivered to the Adams Express Company, as the initial carrier, at Lenox. From the latter place the plants were "forwarded to the city of New York, and there delivered to the defendant to be further forwarded to Orange. At Orange, the plants were tendered to the plaintiff who refused io receive them because the tender was, as claimed, accompanied with a demand of payment of exorbitant charges as a condition of delivering to him, he having offered at the time to pay at the rate of alleged" agreed charges to which the defendant’s agent declined, to accede. From the pleadings it appeared that the defendant is a corporation formed under the laws of Colorado, and. upon the trial the plaintiff admitted that he was at the time of the commencement of this action, and at the time of the trial, a resident of Orange. The trial court dismissed the complaint and from an affirmance of the judgment of such dismissal an appeal was taken to this court.
That the court below was without jurisdiction to entertain the action because of the nonresidence of the plaintiff and defendant at the time of its commencement seems clear to demonstration. Code Civ. Pro., § 1780; Perry v. Erie Transfer Co., 28 Abb. N. C. 430; Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315.
The plaintiff, however, insists that the facts are within the exceptions of the Code provisions referred to, in that it appears (1) that the contract of carriage, so far as it concerns the defendant, was made within this state; (2) that the property alleged to have been converted, was situated within this state when the contract was made, and (3) that the cause of action arose within this state. Neither of these contentions is to be upheld.
We concede that the defendant’s responsibility for the safe carriage and delivery of tire plants to the plaintiff did not attach .until delivery of them to it by the initial carrier, which we have assumed, was in the city of New York. Still the mere attachment of such responsibility was not a new contract but was pursuant to and in furtherance of the executory contract entered into at Lenox, at which place the plants were at the time, by the plaintiff’s agent with the initial carrier acting for itself and the defendant. Though
The only- remaining contention is founded upon the presence in the defendant’s way-bill of a memorandum of the alleged exorbitant charges, and from this it is argued that there was. a.t the time an intention upon the part of the defendant to insist upon ’ the payment of such charges and, therefore, a conversion of the plants. To this we might reply that the record is destitute of all evidence tending to show where -the memorandum was made or the bill was issued. We do not overlook the fact that the bill is. inscribed “From New York. Depot to Orange, N. J.,” but the unchallenged evidence was that the defendant’s so-called “ New York Depot ”is at Jersey City, New Jersey. If we agree, therefore, that the memorandum alluded to was sufficient evidence of a conversion when it was made, we are, nevertheless, unable to say' that the conversion took place, or that the cause of action arose within this state. Waiving the point, however, and assuming that the way-bill was issued within this state, we are confident that the evidence relied- upon by the plaintiff was not sufficient.
No wrong is to be imputed from a mere emotion of the mind. People v. Cook, 8 N. Y. 67, 79. The defendant had lawfully acquired the possession, of the plants, and with the consent of the plaintiff retained such possession charged with the contractual duty of forwarding the plants to their ultimate destination, a duty which it concededly performed. There was nothing hostile in this to the plaintiff’s ownership or right of possession. The defendant may have mistaken its proper charges, or even intended to- collect exorbitant charges, but it is not a reasonable inference or deduction therefrom, that it intended to assert a lien for such charges and to detain the plants until such exorbitant charges were paid to' it. To so conclude, it seems to us, Would be to proceed upon the merest conjecture o-f surmise. Unquestionably, mere words may be sufficient to show a conversion, but .where they are relied upon it should appear that they were “ uttered under such circumstances, in prox-. imity to the property, as to show a-defiance of the owner’s right, a determination to exercise dominion and control over the property and to exclude the owner from the exercise of his rights.” Gillet v. Roberts, 57 N. Y. 28, 33.
The judgment should be affirmed,' with costs.
Daly, P. J., and McAdam, J., concur.
.Judgment affirmed, with costs.