12 Abb. Pr. 393 | N.Y. Sup. Ct. | 1860
—This was an action for the wrongful conversion of personal property, tried in the City Court of Brooklyn, where the plaintiff had a verdict for the sum of $226.84.
The plaintiff was the tenant of the defendant of certain premises situated in Williamshurgh, county of Kings, in which he manufactured agricultural implements. The power used in the manufacture was steam, with usual engine, boilers, flues, chimney, shafting, and belting. The plaintiff was removed from the premises in November, 1857, and during the continuance of his term therein, by proceedings taken against him before a justice of the peace for the non-payment of rent. The property in dispute consisted of shafting, belts, pulleys, and a brick chimney put in the building on the demised premises by the plaintiff for the purposes of his business. The principal questions litigated are: 1st, whether the articles of property claimed were fixtures; 2d, whether the defendant was guilty of conversion; and 3d, the amount of damages, if any, that the plaintiff was entitled to recover.
With respect to the first question, the character of the belts, shafts, and pulleys admits of no manner of doubt. They were clearly not fixtures, not so attached to the freehold as to become
In regard to the conversion, the acts of the defendant amount to what the law denominates a conversion. He claimed the property as his own. He refused to allow the plaintiff and his servants to remove it. The plaintiff was removed from the premises against his will, by an officer with the process of the I law, who had the positive direction of the defendant not to per- . mit the plaintiff to remove the shafting, the chimney, or the ' belting. .This order the officer executed at the same time that I he executed his process of removal. This claim and dominion / of the property, in hostility to the rights of the plaintiff, amounted, to a conversion. ^
.Evidence was given of the value of the various articles converted, and also of their original cost. The value of the chimney as it stood was also proved, as well as the number of brick it. contained, and the value of the brick per thousand. I see no objection to this kind of evidence, because it all had a tendency to instruct the mind of the jury upon the amount of the damages which the plaintiff was to recover. The radical error, however,
For this reason alone there should be a new trial, with costs to abide the event, and to that end the judgment should be set aside.