Hudson River Rail Road v. Lounsberry & Betts , 25 Barb. 597 ( 1857 )

By the Court, Clerke, J.

If this may be considered an action of tort, for the conversion of the whisky, I think that the referee was justified in finding for the plaintiffs. The possession of the property by the defendants, and their refusal or neglect to deliver it, after demand, were sufficiently proved.' The plaintiffs having been deprived, involuntarily, of the possession, no matter in what way, are, even as qualified owners, entitled to the restoration of the property, or to its value.

If, on the other hand, this may be considered an action for the value of the property, on an implied contract, the complaint and the evidence are sufficient to sustain it. The plaintiffs, on the 2d of February, 1854, became the_purchasers of the whisky from the consignees, and afterwards demanded the return of it, or payment for it. three or four times. As the absolute owners, then, they were entitled to what they demanded, and are consequently entitled to maintain an action for its value. The only objection to this view of the subject is, that the plaintiffs assumed the ground that there was a conversion, and sue as for a tort; but I see nothing in the pleadings or the evidence positively committing or concluding the plaintiffs on this point. I think judgment can be rendered in their favor in either aspect of the case.

[New York General Term, November 2, 1857.

It is plain that the plaintiffs cannot be deemed the assignees of a thing in action. Their claim can only be sustained, as I have intimated, on the ground that they were either the qualified or absolute owners of tangible personal property. The defendant Lounsberry, therefore, had no right to be examined as a witness, under ■§ 399 of the code. The subject of the controversy was not a thing in action, and Mr. Dows, consequently, was not examined as an assignor of a thing in action, but as the agent of the parties, who had sold the property to the plaintiffs.

Judgment affirmed with costs.

Mitchell, Clerke and Pear-body, Justices.]