Dexter v. Dexter , 23 N.Y. St. Rep. 208 ( 1889 )

By the Court.—Truax, J.

The action was brought by the plaintiff to recover damages for the conversion of certain goods. The evidence shows that the goods were taken by the defendant as the assignee for the benefit of creditors of one John W. Dexter, and that at the time the goods were taken by the defendant they were in the possession and under the control of the said John W. Dexter.

It was held by this court in the case of Goodwin v. Goldsmith, 49 Super. Ct. Rep. 101, that in order to establish a conversion as against an assignee for the benefit of creditors who has simply taken the property of his assignor, it is necessary to show that a demand has been made upon him, and that he has refused to comply with such demand.

A demand was alleged in the complaint and was admitted by the answer. But it was shown on the trial that at the time this demand was made the goods had been destroyed by fire, without any fault or negligence on the part of the defendant.

It was held by the Commission of Appeals in the case of The Salt Springs National Bank v. Wheeler, 48 N. Y. 492, that a demand and refusal to deliver do not establish a conversion where, at the time of the demand, the property in question is not in existence, and that the accidental loss or destruction of an article by one lawfully in its possession is not a conversion. For this reason we are of the opinion that the complaint was rightly dismissed.

After the plaintiff had rested her case and after the court had intimated its intention of dismissing the complaint, the plaintiff offered to show that her assignor, to whom she alleged the goods in fact belonged, was driven away from the house in which the goods were stored and from which they were afterwards taken by the defendant, and that the defendant knew of this fact before the assignment was made to him and before he took the goods. The court refused to allow the plaintiff to show this fact. Under the circumstances of the case, as shown in the papers on this appeal, we cannot say that it was error in the court not to allow the plaintiff to re-open her case.

The judgment appealed from is affirmed with costs.

Sedgwick, Ch. J., and Dugro, J., concurred.