Alt v. Weidenberg — 19 N.Y. Super. Ct. 176

Majority

p. 176

Charles & Philip Alt, Plaintiffs and Respondents, v. Jacob Weidenberg, Defendant and Appellant.

Headnote

1. One having only a special property in a chattel, may recover of a person who wrongfully takes or converts it, its full value; such person not being the general owner nor acting under his authority.

2. A person not engaged in the business of warehousing or storage, who permits another to deposit a chattel in an unoccupied room of his premises, does not thereby acquire any lien on such chattel for the value of the storage of it.

(Before Bosworth, Ch. J., and Robertson, J.)

Heard, February 13th;

decided, February 25th, 1860.)

This is an appeal by the defendant from a judgment entered on the report of Stephen P. Nash, Esq., as Referee.

The action is brought to recover damages for the wrongful taking and conversion by the defendant on or about the 18th of April, 1856, of a piano forte, then in the lawful possession of one Herman Schlarbaum, of the value of $325.

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The piano, prior to such conversion, had been deposited by a third person (then the owner of it) with Schlarbaum by way of pledge or as security for $150, which the latter lent to him.

Schlarbaum while he had possession of the piano, by the license and permission of the defendant placed it in a room on his premises; and the defendant subsequently claimed rent or storage and a lien on the piano therefor, and the defendant on the piano being demanded of him prior to the 25th of August, 1856, refused to give it up unless his said claim for storage was paid, and subsequently took and carried away the piano. The defendant when the piano was put in his room, was not engaged in the business of warehousing or storage, but was a merchant tailor; the room in which the piano was placed being a room of his premises not used by him at the time.

On the 25th of August, 1856, Schlarbaum by a written transfer, sold and assigned to the plaintiffs “ a certain claim and demand” which he had against the defendant “for on or about the 18th of April, 1856, wrongfully and unlawfully taking and converting to his own use a certain piano forte which then belonged to me (Schlarbaum,) with full power to said Charles Alt and Philip Alt, to sue for, recover and collect the said claim and demand.”

The pledgor of the piano subsequently, and after this suit was commenced, agreed with Schlarbaum, that the latter might keep it absolutely for the $150.

The Referee held that the defendant had no lien on the piano, that he was liable for the value of it, and that the assignment transferred to the plaintiffs a right to recover such value, and ordered judgment for the plaintiffs for $393.25, besides costs. The report is dated May 12,1859. The defendant duly excepted to the Referee’s decisions, and from the judgment entered on his report, appealed to the General Term.

John C. T. Smidt, for appellant.

Insisted that the assignment did not transfer the piano itself, but only Schlarbaum’s damage by reason of the alleged detention.

That Schlarbaum had not become absolute owner when he made the transfer to the plaintiffs; and could still maintain replevin for the piano itself notwithstanding such transfer, and

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hence he had not suffered any actual damage by the refusal to give it up when demanded, and therefore the plaintiffs could recover nothing.

■ At all events Schlarbaum could, at most, recover only $150, the amount of his advance; and the plaintiffs as his assignees could not recover more.

Lewis S. Thomas, for respondents.

We think there was evidence sufficient to warrant the conclusions of the Referee that the plaintiffs’ assignor was lawfully possessed of the piano; that the defendant wrongfully took it from his possession; and that its value was the sum found as damages.

The defendant being a trespasser, the measure of damages is the value of the property. (Clark v. Pinney, 7 Cow., 681 , note a; Kissam v. Roberts, ante, 154.) Where the plaintiff has only a special property, and the suit is against the general owner, the recovery will be limited to the amount of such interest. (Id.) In this case the plaintiffs’ assignor, it is true, had only a special property at the time of suit brought; but, as the defendant was a trespasser and neither the general owner nor acting under his directions, the measure of damages was the value of the property.

The defendant had no lien upon the piano. There was no agreement by the terms of which he was to have one. He did not store it in such capacity as to have a lien by the rules of the common law. (Grinnell v. Cook, 3 Hill, 491 , 492; Rivara v. Ghio, 3 E. D. Smith, 267, 268.)

McKee v. Judd, (2 Kern., 622,) is to the point that the assignment to the plaintiffs was sufficient in form to transfer Schlarbaum’s right of action, and that the cause of action is assignable.

We think, therefore, that the judgment cannot be disturbed, either on the ground that the findings of fact are not warranted by the evidence, or that there is error in the conclusions of law, held by the Referee on the facts as found.

Judgment affirmed.