Carey v. Flack , 45 N.Y.S. 759 ( 1897 )

McAdam, J.

The action was by the plaintiff as receiver (appointed in proceedings supplementary to execution) of one Michael McMunn to recover (1) for services rendered by McMunn while trading under the name of Russell Brothers, and (2) for goods sold and delivered by McMunn to the defendant. The charge for services was $427.50, on account of which $168.72 was conceded to have been paid, the defendant claiming to have paid $240.38 thereon. The sale of the goods was denied, and the defendant pleaded a counterclaim of $250 for electrotype plates- delivered to McMunn to perform the services rendered by the latter; some of which plates it is alleged were not returned, and .some it is charged-were sent back in a condition unfit for use. There was a •conflict of evidence as to the facts constituting the defendant’s counterclaim, and the jury having found adversely thereto, it may for the purposes of this appeal be regarded as out of the case.

The jury also found that the defendant was only entitled to. credit on the services rendered for $168.72, the amount conceded by the plaintiff to have been paid; so that there is no merit in that portion of the appeal pertaining to the first 'cause of action.

The jury allowed on the second claim $32 for eight chases, and $120. for sixty blocks, making $152;. and this sum, added to $258.50, the balance due on- the first claim, is the amount of the ■ verdict without interest.

■ The defendant strenuously objected to that part of the recovery for chases and blocks. The proofs show that these were loaned .to the defendant, and delivered for his use, at the request of his son and business -manager, to the Kay Printing Company.’ It is claimed by the defendant that no demand was made for the return of the property loaned, and hence the defendant as bailee could not, in consequence of the omission, be sued for its value or in conversion. Esmay v. Fanning, 9 Barb. 176; Bates v. Conkling, 10 Wend. 389; Brown v. Cook, 9 Johns. 361; Feltman v. Gulf Brewery, 42 How. Pr. 488. The difficulty is that no such point was made in the court below either by motion to dismiss or otherwise, and cannot be urged for the first time upon appeal. Furguson v. U. S. Land & I. Co., 33 N. Y. St. Repr. 425; Gerding v. Haskin, 141 N. Y. 514, 520.

The objection having been waived by failure to raise it where it might have been obviated, and the defendant having failed to return the property, the conversion may be assumed to have been complete so as to. authorize the plaintiff to waive the tort and sue for the value on the implied assumpsit to pay. Terry v. Munger, 121 N. Y. 161; Hawk v. Thorn, 54 Barb. 164; Goodwin v. Griffis, 88 N. Y. 638, 639; 1 Wait’s Act. & Def. 405.

It is also claimed that tins portion of the recovery is excessive; but there is no exception in the case which presents the;question in a form in which we are permitted to review it. In this respect the case resembles Briscoe v. Litt, 19 Misc. Rep. 5; 42 N. Y. Supp. 908, in which we were unable to render the appellant any relief from an excessive recovery for want of an exception presenting the question in legal form.

The refusal to charge as to value was proper, for there was conflicting evidence on that point; so was the refusal as to levy by the sheriff, as there was not sufficient proof on that subject to warrant the binding instruction requested. Nothing appears in the case to show that any obstacle prevented McMunn from delivering the goods, or hindered" the defendant from returning them. The exceptions to these refusals, therefore, present no error.

Upon the record before us the judgment must be affirmed, with costs.

Daly, P. J., and Bischoee, J., concur.

Judgment affirmed, with costs.