I. Tanenbaum, Son & Co. v. Cook , 155 N.Y.S. 242 ( 1915 )

SHEARN, J.

The complaint sets forth a cause of action against the defendant Ida B. Cook, owner of the building 30 Bond street, and the defendant Liebmann, a tenant therein, for the conversion of a sprinkler equipment owned by the plaintiff and installed in the premises pursuant to a written agreement whereby the defendant Cook agreed that at the termination of the contract on August 1, 1913, the plaintiff might enter upon the premises and remove the sprinkler equipment, and whereby the defendant Cook further agreed to procure for the plaintiff all necessary permits for such removal.

[1] 1. It is claimed on behalf of the defendant Cook that, as she had on December 11, 1912, leased the fourth loft above the store floor to- Liebmann for the term from February 1, 1913, to February 1, 1914, she had no right to enter Liebmann’s premises and remove tire part of the sprinkler equipment installed therein, and can only be held liable for breach of contract. This is unsound. A party cannot, merely by putting it out of his power to regain possession of personal property, to which he has not title, but merely a license to' use, avoid a cause of action for conversion.

[2] 2. The contention that the plaintiff failed to show that the defendant Cook had possession or control of the converted property cannot properly be urged, in view of the admission in the answer of the third paragraph in the complaint, wherein it is alleged that at all the times in question the defendant Liebmann “has been and is in possession and control, together with the said Ida B. Cook, of a part of the aforesaid building and premises.” As above stated, the defendant Cook owned the entire building, and the part of the premises occupied by Liebmann was the part where the part of the sprinkler equipment converted was located. Possession and control of the building and of the loft in which the sprinkler equipment in question was located carried with it possession and control of the sprinkler system installed therein.

[3] 3. The mere fact that plaintiff might have had an action for breach of contract did not destroy its right of action for conversion, where its title to tire property and its legal right to its immediate possession were unassailable. There are many reported cases where recovery has been upheld in conversion, although a contractual relation existed between the parties. Neither are such cases confined to- those in which an affirmative duty rests upon the defendant to return plaintiff’s property. *

[4, 5] 4. The claim of the defendant Liebmann that, because of a provision in his lease with the defendant Cook “to pay * * * the sum of $15 per annum towards the annual total cost of the maintenance of the automatic sprinkler system and central station connection now installed in the premises,” his right to possession up to February 1, 1914, may be regarded as affirmatively established, on the theory of implied contract, or that the plaintiff’s right to possession may be regarded as negatived on the theory of estoppel, is without merit. The plaintiff was not concerned with the terms of the contracts between the owner of the building and her tenants. The payment was not made to the plaintiff, nor was it "supposed to be made to the plaintiff. The plaintiff did undertake to procure the return to the defendant Liebmann of the sum of $15 paid by him to the Automatic Fire Alarm Company, being his proportion of the cost of maintaining the electric connection to the sprinkler system (provided for in the lease), and sent the defendant Liebmann plaintiff’s check for this amount on July 25, 1913. Liebmann deposited the check, and collected it, after the commencement of the action. This act on the part of the plaintiff for the benefit of the defendant Liebmann did not create or evidence any contract, express or implied, between the plaintiff and Liebmann, nor did it estop plaintiff from its right to obtain possession of its property. No grounds were assigned for dismissing the complaint, and no substantial ground for so doing is apparent.

Judgment reversed as to both defendants, and new trial ordered, with costs to appellant to abide the event. All concur.