Walsh v. The Bourse

15 Pa. Super. 219 | Pa. Super. Ct. | 1900

Per Curiam,

The regulation of the defendant which provides that “ all furniture, bulky packages and freight must be carried on the freight elevator ” is obviously reasonable, and no person, whether tenant or not, could claim successfully that any of his rights were infringed because he was prevented from removing such articles by the stairway. But the defendant went further and ordered the goods to be returned to the tenant’s office from which they had been taken, which was done. Did this amount to a conversion for which the defendant was liable to the full.extent of the value of the goods ? It is asserted in the affidavit of defense that the goods were being surreptitiously removed by persons whose names and identity were unknown to the defendant. Was the attempted removal surreptitious both as to the defendant and the tenant, or were the goods removed from the tenant’s office with his consent? Was force or its equivalent used to compel these unknown persons to return the goods to the tenant’s office, or did they voluntarily obey the defendant’s order ? These questions of fact have an important bearing upon the main question above suggested, for we are not prepared to hold that the owner and custodian of such a building may not interfere for the tenant’s protection to prevent the surreptitious removal of their goods by strangers. And if the defendant had not incurred liability prior to the return of the goods to the tenant’s office no liability was incurred by the subsequent seizure of the goods under a landlord’s warrant- (the goods being then upon the demised premises) for which an action of assumpsit to recover their value would lie. See Esterley Machine Co. v. Spencer, 147 Pa. 466, and Bogert v. Batterton 6 Pa. Superior Ct. 468.

The affidavit of defense is not as full and explicit upon some of the matters of fact as might be desired. But it is to be remembered that this is an appeal from an order refusing judgment. The act allowing appeals from such interlocutory orders was intended to reach only clear cases of error in law and thus to prevent the delay of a trial. This has been said so many times that it is unnecessary to cite the authorities. We do not think this case is so clear and free from doubt as to justify a reversal.

The appeal is dismissed at the costs of the appellant but without prejudice.