2 N.Y.S. 348 | N.Y. Sup. Ct. | 1888
This action was brought to recover damages for the wrongful taking and conversion of a quantity of machinery. It appears from the plaintiffs’ evidence that the plaintiffs and one Henry D. Kipp were copartners engaged in the manufacture of stoves and lumber; and for that purpose had owned real estate upon which was erected a mill containing a boiler, engine, planers, and other machinery suitable for the business; that in July, 1874, the copartnership was dissolved, and a division of the property agreed upon; that under the agreement the iot on which the mill was located was to become the property of Kipp, and a deed conveying it to him was executed by the other members of the firm. The evidence further tends to show that Kipp was owing.the plaintiffs a sum of money, the amount of which had not been determined, and the deed of the mill property was delivered to a third person, to be retained by him until the amount of such indebtedness should be ascertained and paid; that about the 10th of October thereafter Kipp and one P. W. Hunger, the father of the defendant, and the defendant, with a number of other persons, entered upon the premises, took the machinery from the mill, loaded it upon cars, and it was subsequently transported to the state of North Carolina, where Kipp had purchased premises upon which he intended to construct a mill; that the plaintiffs were present at the time the machinery was taken out of the mill, and forbade the same until the amount owing by Kipp was paid. After such removal, the plaintiffs brought an action against Kipp and P. W. Hunger, in nature ex contractu, to recover the value of the machinery so taken away. That action was brought to trial, and resulted in a verdict in favor of the plaintiffs for $2,616.18, upon which judgment was entered June 24, 1876. Upon the trial of this action the defendant introduced in evidence the judgment roll in the former action, and after the evidence was closed requested the court to direct a verdict in his favor upon the ground that it appeared from the record that the plaintiffs elected to bring an action against Henry D. Kipp and P. W. Hunger in form ex contractu for the recovery of the value of the same property for which the plaintiffs seek to recover of the defendant in this action; and that, by doing so, had waived the right to bring an action against any of the participants in tort. The trial court granted the motion, and so directed the jury to find, and the jury thereupon rendered their verdict for the defendant.
It is contended, in the first place, that the former action was not an action ex contractu; but this question has been disposed of, so far as this court is concerned, in the review of that case, in which the court of appeals held that the complaint showed an intent to waive any alleged tort, and that the action was one in its nature ex contractu, and that therefore a body execution was illegally issued. Goodwin v. Griffis, 88 N. Y. 629. It is contended, in the sec-
Bradley and Dwight, JJ., concurred.