Caywood v. Van Ness , 74 Hun 28 ( 1893 )

PRATT, J.,

(concurring.) This is an appeal from a judgment entered upon a verdict of a jury. The evidence is necessarily meager, from the peculiar circumstances of the case, but we think it is sufficient to sustain the verdict. The great point made by the defense is that there is not sufficient evidence of conversion to warrant the finding of the jury. It seems to me this contention cannot be readily sustained. The assignment by Van Ness to Caywood, the general guardian, vested the title of the bond and mortgage in him, ■and it was immaterial whether it was delivered to him at the time or not,” although, a witness for the defendant testified that he saw it delivered at that time. By some means, which do not clearly appear, Van Ness regained possession of the bond and mortgage, and' assigned them to another party. Such assignment was a conversion, unless Van Ness was rightfully the owner of the bond and mortgage at that time, and the jury has found that he was not such rightful owner. This result was partly reached through the admissions and statements of the defendant himself. The defendant well knew that he was dealing with a guardian, and his misfortune is that the jury did not believe his witness, who testified to a settlement with the guardian. The whole transaction, as far as possible-to obtain evidence of it, was before the jury, and, considering the various statements as testified to by plaintiff’s witnesses, we cannot say the verdict was erroneous in any respect. We have examined the exceptions taken upon the trial, and find no error sufficient, to warrant the granting of a new trial. Affirmed, with costs.