McCann v. Gibson , 57 N.Y.S. 253 ( 1899 )

MacLean, J.

In the early part of January, 1897, the plaintiff, through his father, sent a horse by the defendant to one ■Shove, recommended by the defendant and with whom defendant ■also “ turned out ” his own horses, one or more of which were sent ■at the same time with the plaintiff’s horse. After that, the plaintiff’s father and agent was in direct communication with Shove concerning the maintenance and keep of the horse, to whom also he wrote that if he had an offer for the horse, he would sell him.

In the month of May, McCann, senior, had a conversation with ■the defendant, and then the defendant wrote Shove, saying: Mr. McCann was here at my place a few days ago and said to "me to tell you to sell his horse to the best advantage possible and make out bill for keep and report to me as soon as sold.” 'Shove sold the horse. When the McCanns learned of this, they •demanded the horse from the defendant, and, upon refusal, the plaintiff brought this action to recover damages for the conversion ■of the animal. Whatever liability the defendant thus may have incurred to the plaintiff, and ultimately to Shove, he did not assume or exercise such rights over the animal as to make him liable in an action for conversion.

The judgment of the Municipal Court should be reversed and ■a new trial ordered, with costs to the appellant to abide the event.

Freedman, P. J., and Leventritt, J., concur.

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