189 A.D. 400 | N.Y. App. Div. | 1919
The complaint alleges, aside from the formal averments, that “ on or about the 20th day of May, 1916, plaintiff was the owner and entitled to the possession of two thousand nine hundred (2900) pounds of copper sulphate, generally known as blue vitriol, of the reasonable value of thirty (30) cents a pound, or eight hundred and seventy dollars,” and that “ on or about the 20th day of May, 1916, the defendant, Joseph Segal, unlawfully and wrongfully took and carried away the said goods, and converted them to his own use,” and that the plaintiff has demanded and been refused the possession of the same. Demand for judgment is for $870.
The defendant denies the ownership of the goods in the plaintiff, and the unlawful taking of the same; and the evidence was directed to the issue thus raised. At the close of the plaintiff’s evidence, and again at the close of the defendant’s evidence, motions were made for a nonsuit and denied. The court submitted to the jury, not the ownership of the property, but (1) “ Did the defendant take and dispose of the property in question? ” (answered in the affirmative by the jury), and (2) “What was the damage?” This was placed by the jury at $125, which was subsequently reduced by the court to the sum of $54, for reasons not material to be considered on this appeal. There was a stipulation “ that the questions are to be decided by the court and that a non-suit or a general verdict may be directed upon the findings, with the same force and effect as if the jury were present;” but we assume that the court was not authorized to make any findings which could not be legitimately deduced from the evidence, any more than the jury were authorized to reach determinations which were wholly without support in the evidence. We are, therefore, unable to find justification
The case is peculiar in its facts, but that does not justify a verdict without support in the evidence, even though, as suggested by counsel for the respondent, the defendant’s father-in-law is “ a characteristic, long-bearded, old-fashioned, pack peddler,” which alleged fact nowhere appears in the evidence. It appears from the evidence that the Boston and Maine Railroad Company maintained a freight station upon leased lands on Saratoga avenue in the city of Mechanicville for a number of years, and that the Western Union Telegraph Company occupied a portion of this building for the maintenance of its old-fashioned battery system used in connection with the operation of its lines which, in turn, were used in the conduct of the Boston and Maine railroad. That is, the Western Union Telegraph Company, in the operation of so much of its lines as was devoted to the business of the Boston and Maine railroad, made use of a portion of the railroad company’s freight station in Mechanicville, and in course of time the practical operation of the battery room resulted in the accumulation of a considerable quantity of copper sulphate underneath the building. This resulted from the practice of emptying the battery cells into a sink with an outlet into the excavation beneath the building. It is entirely evident from the testimony that it was not realized that this material had any practical value, and so long as copper remained at normal figures it is doubtful if it would have been of sufficient consequence to give rise to litigation. It was just one of the wastes which have been so common in this country.
In the year 1916, however, the Boston and Maine Railroad Company demolished the freight station, and the Western Union, having in the meantime developed a new system of. generating current, the battery room was discontinued, and the local representative of the Western Union Telegraph Company was directed to ship the materials on hand or to otherwise dispose of them. When the freight station building was torn down, the local engineer of the Boston and Maine
There is no evidence in the case that the resident engineer in disposing of the materials upon the premises had any idea that he was selling this sulphate of copper; no one appears to have regarded it as anything more than a dirt heap at the time of the making of the bill of sale on the 17th' of April, 1916, and as it is admitted that there were several wagon loads of lumber, five or six tons of soft coal, some slate roofing and a considerable amount of scrap iron, and the consideration named in the bill of sale was only $100, it is entirely evident that there was no intention of passing title to nearly $900 worth of copper, such as is claimed in the complaint, and it can hardly be doubted that the materials resulting from the waste of the Western Union Telegraph Company belonged either to that corporation, or to the owner of the soil, with which it was mingled, and not to the Boston and Maine Railroad Company, which was merely a lessee of the premises. It is a significant fact that Salisbury, the plaintiff, who succeeded to the rights of Campbell, drew away the coal, the iron, the slate and the lumber, without doing anything toward reducing the sulphate of copper to possession, and that nothing was done in that direction until after the copper was taken away.
After the materials above enumerated had been removed, some one appears to have discovered the presence of this heap of refuse which had accumulated underneath the old building, and one William B. Murray, who testified that he was employed by the Western Union Telegraph Company as a lineman, and that he had charge of the materials of the said company, with authority to ship or dispose of the same, at the time of the demolition of the freight station, testifies that he sold this sulphate of copper, not to the defendant,
The judgment and orders appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event.
All concurred, H. T. Kellogg, J., not sitting.
Judgment and orders reversed on the law and facts, and new trial granted, with costs to the appellant to abide the event. The court disapproves of the finding that the plaintiff was the owner of the property and that the defendant wrongfully converted the plaintiff’s property.