Lamb v. O'Reilly — 13 Misc. 212

Majority

p. 212

James Lamb, Respondent, v. John O’Reilly, Appellant.

(New York Common Pleas—General Term,

June, 1895.)

Headnote

The exercise hy a lienor of dominion over the property inconsistent with the special right of possession existing by virtue of the lien constitutes a conversion of the property.

Where neither the date of such conversion nor the condition of the property at that time is shown, the damage may be proved by showing its value at the date when possession was given to the lienor.

Appeal from a judgment of the District Court in the city of New York for the fifth judicial district, rendered by the justice, without a jury, in favor of the plaintiff.

Action for conversion.

James A. Donegam,, for appellant.

Jacob Levy, for respondent.

Plaintiff brought this action for the conversion of a wagon, wagon robe and harness and recovered a judgment for forty dollars.

Defendant claimed to hold the chattels as security for the repayment of a loan of thirty dollars made to defendant’s son, the latter being in charge of • the plaintiff’s livery stable business and having delivered the property in question to the defendant. This delivery was made in June, 1894, return

p. 213

demanded by plaintiff in September, 1894, and the action brought in February, 1895, the chattels being still in the possession of the defendant.

It was shown on behalf of the plaintiff that the wagon, when seen within a week of the trial, was worth no more than five dollars by reason of its condition, and the evidence supports a finding that defendant, by the use to which he put the wagon, exercised dominion over it inconsistent with the special right of possession existing by virtue of the lien. Thus there was a conversion at the date when such dominion was exercised, irrespective of the date of demand (26 Am. & Eng. Ency. of Law, 741, 742, and cases cited), and it being undisclosed as to the date of such conversion, or the condition of the chattels at that time, the damage was properly to be proven by showing the value at the date when possession was given to the defendant. Id. 827, 828. From the proof a fair inference is to be drawn that this value was between seventy and seventy-five dollars, and we may support the judgment upon the assumption that defendant’s counterclaim for thirty dollars was allowed. The weight of the evidence is not found to be against the respondent.

Judgment affirmed, with costs.

Bookstaveb and Pbtob, JJ., concur.