Handlor v. Perlberg , 158 N.Y.S. 706 ( 1916 )

PER CURIAM.

The complaint alleged that the plaintiff placed in the possession of the defendants a photographic lens for the purpose of being repolished, which' work was to be done for the agreed sum of $3; that subsequently plaintiff tendered to defendants said sum of $3, and demanded the return of the lens, which was refused, and damages for its value were alleged to be $55. The answer was a general denial.

Upon the trial the plaintiff testified that he called at defendants’ place of business and saw the defendant Halpin; that he showed him the lens, and that Halpin agreed to do the work for the sum of $3; and that he received from Halpin a paper, which was received in evidence. _ This paper contained the letter head of the defendants, and following the description of the instrument contained these words: "To be repolished, charges $3.” This paper was not signed by any one. Plaintiff also testified to a demand upon Halpin, and a refusal by him to deliver the property to plaintiff, unless paid the sum of $5. Halpin admitted handing the above-mentioned paper to plaintiff, but insisted that he loaned plaintiff $3 upon the lens, and had not been paid. Plaintiff testified the value of the lens was $55, and defendant testified it was worth $10 only. Neither qualified as experts upon the value of that kind of property. The court below directed the following judgment to be entered:

“I hereby find and decide that the plaintiff is entitled to the possession oí the lens, the value of which I fix at $12, upon payment to the defendant after trial, and the clerk is directed to enter judgment accordingly.”

The clerk, however, entered a judgment in the following form:

“Judgment.

“Judgment is rendered in favor of plaintiff for possession lens and against defendant for twelve (12oo/100) dollars and three ($8o<>/ioo) costs and disbursements as taxed, amounting to fifteen dollars ($15.00).

“Dated October 15, 1915.”

[1] The judgment entered by the clerk is the disposition of the case evidently intended toi 23be made by the trial justice. The action being for conversion, however, no judgment for the return of the property could be rendered. “A party whose property has been wrongfully converted is not bound to take the same back. He may abandon it from the moment of its conversion, and sue for its value.” People v. Bank of North America, 75 N. Y. 547, at page 564. The judgment is therefore erroneous.

[2] The judgment could undoubtedly be cured upon appeal, if there was any competent evidence of value. In an action for conversion, the judgment may carry the right to imprisonment, and evidence of value should be clear and competent.

[3] Another thing may also be said. The defendants were sued as copartners. There is not the slightest evidence that Perlberg, Plalpin’s codefendant, had anything whatever to do with the transaction. The action for conversion is personal in its nature, and no judgment of that character could be obtained against the defendant, without showing some joint participation in the cause of action.

However, as under subdivision 2, section 27, Municipal Court Code (Laws 1915, c. 279), no action can be defeated by reason of misjoinder or nonjoinder of parties, this defect, if it is shown to exist upon a new trial, can be remedied.

Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event.