59 N.Y.S. 287 | N.Y. App. Div. | 1899
From a judgment in an action for the conversion of certain personal property the defendant appeals. The property consisted of a coach and a set of harness belonging to the plaintiffs. One Frank Kane, without the knowledge or consent of the plaintiffs, gave the property into the possession of the defendant, a corporation. It was delivered to Kane by a Mrs. Prior, who acted without authority. On learning that the defendant had the property, the plaintiffs demanded .it from the president of the defendant. It is established by the testimony of several witnesses that one Lynch (the president of the defendant), when the demand was made upon him, said that the plaintiffs could not have it; that Kane was indebted to the defendant for a bill for a horse, and that when that bill was paid the coach would be given up; and he also stated that if the plaintiffs wanted the property, they could get it by bringing a replevin suit. On the.other hand, Lynch testified that when the demand was made, he said the property would be surrendered upon the procurement of an order from Kane. The jury found in favor of the plaintiffs upon conflicting evidence and their verdict is fully sustained by the proofs. The conversion, therefore, was fully made out.
It is objected that improper evidence was received as to the value of the property converted. On the part of the plaintiffs, the testimony to show the value of the coach was its cost some five years before the conversion, its condition when bought, the value of repairs put upon it, and that it was in good order at the time it was converted. Proof was also given as to the cost of the harness and its condition at the time of the conversion-. It appeared that the coach was partially destroyed by fire while in the possession of the defendant, and after its refusal to deliver it upon the plaintiffs’ demand. The evidence* as to the value of the coach, under the circumstances, was proper. (Jones v. Morgan, 90 N. Y. 4.)
One of the plaintiffs’ witnesses was asked what he paid for the har
There was testimony of the value of the use of the coach, which seems to have been rented by the plaintiffs, who were livery-stable-keepers, to excursion parties on special occasions. One of the plaintiffs’ witnesses was asked whether they had applications for the use of the coach, but that particular question did not refer to a time-subsequent to the conversion and could have, been answered categorically, and was only objected to on the ground that it was immaterial. It was nowhere suggested, nor was the attention of the court, during the whole trial called in any way. to the fact that special damage had not been pleaded. Had that been done the court might, have allowed an amendment to the complaint, as that would have related merely to damages. When the plaintiffs’ witness was asked.
The finding of the jury was justified, the conversion was proved, and the amount of the verdict is not excessive.
The judgment and order appealed from must he affirmed, with costs.
Van Brunt, P. J., Rumsey and Ingraham, JJ., concurred.
1 cannot concur in the suggestion that, by an amendment, special damages would have been authorized. The damages here were limited to the value of the property at the time of conversion. I concur in the result, however, as the question on that head was not properly or sufficiently raised.
Judgment and order affirmed, with costs.