Warner v. Cecil , 145 N.Y.S. 902 ( 1914 )

Page, J.

The complaint alleges that the defendant was the owner of sixteen shares of stock of the Westinghouse Air Brake Company, and for a valuable consideration assigned to the plaintiff his right, title and interest therein to the extent of $300, or for three-eighths of the sixteen shares. It then states that the defendant sold the stock without authority from or notice to the plaintiff and appropriated the proceeds to his own use, and that the plaintiff demanded of the defendant the sum of $300, or in lieu thereof the delivery to her of shares of the said stock of $300 value and that the defendant refused to comply with her demands and unlawfully converted the stock and its proceeds to his own use. The theory upon which the complaint was dismissed by the learned trial justice seems to be that under such circumstances only an accounting in equity between tenants in common would lie, and that the Municipal Court had no jurisdiction of the action. This in my opinion is clearly error. It is conceded that the relations of these parties with respect to the stock were those of tenants in common-. As stated by the court in Brown v. Burnap, 17 App. Div. 129, upon which the respondent relies, a sale of the property by one co-tenant does not amount to a conversion thereof unless it ignores and disclaims the rights of the other tenant, and it may be conceded that in the case at bar the sale of the stock by the defendant did not in itself necessarily amount to a conversion since it was not inconsistent with the plaintiff’s rights. After the sale, however, the plaintiff became at once the owner of $300 of the purchase money received by the defendant and was entitled to immediate possession thereof upon demand. She alleges that she demanded it and that the defendant refused to deliver it. Such a demand and refusal was a denial of the plaintiff’s rights and clearly a conversion. Osborn v. Schenck, 83 N. Y. 201; Lawatsch v. Cooney, 86 Hun, 546; Hayes v. Kerr, 40 App. Div. 348; Gates v. Bowers, 169 N. Y. 14,17. Ho accounting was necessary to determine the exact amount of the plaintiff’s share. It was liquidated by the prior agreement. The- action was properly brought in conversion and the complaint should not have been dismissed.

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Lehman and Whitaker, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.