Mortimer E. Serat, Respondent, v. The Utica, Ithaca and Elmira Railway Company, Appellant

Mortimer E. Serat, Respondent, v. The Utica, Ithaca and Elmira Railway Company, Appellant. A wrongful conversion of property does not deprive the owner of his title, he may transfer the title to another, who, upon demand and refusal- of the person in possession of the property to surrender the same, may maintain an action against him for a conversion. (Submitted April 16, 1886 ; decided April 30, 1886.) The following is the mem. of opinion in this action: , “ The plaintiff sought, in this action, to recover damages for the conversion, by the defendant, of certain trestle-works, constructed for the unloading and distribution of coal. The answer put in issue the material allegations of the complaint. The trial court found, upon evidence, to the sufficiency of which no objection is made, that, prior to the month of January 5 isés, a copartnership existed between the plaintiff Swift and Seth Serat, under the name of the "Valley Coal Company; that it constructed a trestle-work, in pursuance of a contract between the firm, the defendant and a [certain other railway company, but upon such conditions that the materials used in' the construction of the trestle-work remained, at all times, the personal property "of the firm, with the right to remove the same at any time; that, in J anuary, 1883, the defendant wrongfully took possession of the materials and trestle-work and converted them to its own use; that afterward, on the 10th of July, 1883, two of the copartners, Seth Serat and Swift, assigned and transferred to the plaintiff their right, title and interest in the material and timber used in said trestle-work, and afterward, before the commencement of this action, and on the 12th of July 1883, the plaintiff demanded of the defendant the trestle-work and materials and the possession of the same; that the defendant refused to give up the works or the material thereof, or to allow the plaintiff to remove the same. “ The learned trial judge found that the property was worth $1,500; that it belonged solely to the plaintiff, and that the defendant was guilty of a conversion in refusing to allow the plaintiff to remove the same as demanded. He, therefore, directed judgment for this amount, with interest from the 12th of July, 1883. It has been affirmed by the General Term. “Upon this appeal the appellant raises two questions, first, whether there can be a second conversion of property ; second, whether the findings of fact above referred to, support the conclusion of law made by the trial judge. Neither question admits of doubt. The defendant’s wrongful act in January, 1883, did not change the title to the trestle-work, and although its then owners—the Valley Coal Company—might have sued for its conversion, they did not, nor were they bound to do so. Instead of that, two of its three owners chose to sell their interest in the property to the third, and he, after demand, brought this action. The previous wrong on the defendant’s part was no excuse for its failure to surrender the property when demanded, and the action was well brought by its then owner. As against the defendant at any rate, the property has ceased to be a partnership asset. For any thing within the record, the appeal is without excuse, and the judgment should be affirmed.” ■ , Brown da Armstrong for appellant Gabriel L. Smith for respondent. [MAJORITY — Danforth, J.,] Danforth, J., reads for affirmance. All concur. Judgment affirmed.