99 N.Y.S. 755 | N.Y. App. Div. | 1906
Plaintiff’s assignor, Lorenz Reich, was a tenant of the Cambridge Hotel, owned by defendants’ testator. Summary proceedings had
At the time the tenant was thus dispossessed he had on hand in .the storeroom of the hotel a quantity of hotel supplies, including wines and liquors. It is claimed that the defendants’ testator, on the day of the dispossession, appropriated to his owm use and couvelted this personal property, of the conceded- 'value, with interest, of $8,216. The tenant and owner assigned his claim to this plaintiff, who brought action which resulted in a verdict by the jury in her favor. On defendants’ motion the trial court set aside this verdict as against the weight of evidence and as contrary to law, and granted a new trial. The plaintiff appeals from the order thus made and insists that the verdict was no.t contrary to law, and that the weight of evidence was wholly in her favor, and that, therefore, the order was not justified. We do not think the verdict was contrary to the law. Upon the plaintiff’s proofs, there was exercised on the 17th of March, 1893, by the defendants’ testator, the right of ownership and assumption of ownership, and an exclusion of dominion and control by the owner sufficient to constitute conversion of the property in question. The right to take possession under the writ to dispossess the tenant related, of course, only to the real property, and gave the owner no right to exercise dominion over it or to use or retain the personal property on the premises belonging to- the tenant.
According to the plaintiff’s proof, the defendants’ testator, on the day of dispossession, summoned the steward of the hotel, in the employ of the tenant, and employed him to continue in that capacity, and instructed hitn not to allow the tenant to go to the storerooms or to any of the departments of the hotel, or to take anything away. While the trial court held the plaintiff strictly to her allegation that the conversion took place on the seventeenth day of March, he permitted, and we think properly, as reflecting upon what the defendants’ testator meant by his direction given on the seventeenth, to be given in evidence a conversation had with the steward on the following day, in which the deceased reminded him that he was in charge of all goods in the hotel, and that he was to make use of them as usual for guests, and ag¿iin refused the tenant’s request to be permitted to take the goods away.
It remains to be considered whether or not the order was justified because the verdict was against the weight of evidence.
The plaintiff. was necessarily limited in her proof, for she could not testify against the deceased, nor could her assignor, although both were shown to have had interviews respecting the property with the testator. She was, therefore, compelled to rely, in order to prove her case, upon the testimony of the steward Howes. In addition to the facts which have been enumerated, he testified that he remained in the employ of the testator as steward, disbursing the goods from the steward’s department of the hotel to guests, for five days, until the new tenant, Mr. Walter, took possession, and that the testator paid him for his services for that period of time; that the testator directed him to serve lunch to the guests of the hotel on the seventeenth, and that certain of the goods belonging to the tenant were used for that purpose.
JSTothing appears upon the record discrediting this witness. He had been steward for several years of the plaintiff’s assignor, and for many years had acted in that capacity for some of the principal hotels of the city of Hew York; and he made a list of the goods on hand the evening of the sixteenth of March, with their prices, which the defendants accepted as correct.
From the nature of the case, and as almost always transpires when the active participant in a transaction is dead, the defendants were restricted in their proof and were compelled to rely upon
The tenant dealt in wines, and had on hand large casks of wine difficult of removal, which were stored in a different place on the premises from the goods in question. The testimony discloses that the immediate removal of these goods was a subject of discussion, and that they were not in fact removed until about ten days later, and it is claimed that this written notice related to goods of this character, and not to the goods in controversy, and it would seem that such was the fact.
The plaintiff’s assignor was sworn as a witness, and he did not deny, as he might have done, that he himself served the lunch to the guests of the hotel on March seventeenth. The defendants proved besides that the lease to the new tenant, Walter, was drawn on the eighteenth of March at -the hotel, and the draftsman, although not knowing positively, assumed by his testimony that Walter went into immediate possession. Walter was not called as a witness, and the record does not disclose that he was dead or beyond the jurisdiction of the court. His testimony, if it could be obtained, would have been of great importance to the defendants if it would have shown that the testator did not run the hotel the five days which Howes testified he did, and thus that during that
We have enumerated all the material facts developed by each party, and we do not think the evidence so preponderated in defendants’ favor as to justify the trial court in setting the verdict aside as against the weight of evidence. In so concluding we are not unmindful of the heed which should be given, and which it is the practice of this court to give in motions of this character, to the views of the trial judge, who has had opportunity to see the witnesses upon the stand as they testified, and to observe their candor or lack of candor in giving their testimony.
The motion for a new trial was made npon all the grounds enumerated in section 999 of the Code. In passing upon the motion, however, the court expressed grave doubts as to the propriety of his having submitted the case to the jury as matter of law. In our view it was entirely proper so to do. Had the trial court been of this opinion, he doubtless would have denied the defendants’ motion.
The question is not whether the witnesses upon the one side or upon the other told the truth, but rather one of how much proof each side was able to produce upon the vital question involved. Judging the case by this standard, we think the proof preponderated in plaintiff’s favor, and, therefore, that the order granting a new trial should be reversed and the verdict reinstated, with costs to the appellant.
O’Brien, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.
Order reversed and verdict reinstated, with costs to appellant. Order filed.