Lawatsch v. Cooney

33 N.Y.S. 775, 86 Hun 546, 93 N.Y. Sup. Ct. 546, 67 N.Y. St. Rep. 520

• Court: New York Supreme Court
• Decided: May 14, 1895
• Status: Published

Opinion

PER CURIAM.

The evidence was such that the jury could properly find that plaintiff was part owner of the draft described in the complaint. The parties had agreed upon the amount of his interest therein, and that the draft should be delivered to Brinnier, to collect and divide the proceeds; and on the faith of that agreement plaintiff had indorsed the draft. Afterwards the defendant wrongfully obtained possession of the paper with plaintiff’s indorsement thereon, claimed to be the sole owner, and denied that plaintiff had any' interest therein. We think defendant’s action was such a wrongful appropriation of the draft in violation of the contract of the parties as to constitute a conversion. Delaney v. Root, 99 Mass. 547; Osborn v. Schenck, 83 N. Y. 201. Probably the agreement and the delivery of the draft to Brinnier operated as a separation of the tenancy in common therein. Lobdell v. Stowell, 51 N. Y. ; Channon. v. Lusk, 2 Lans. 211. An action in the nature of a trover can be maintained as well for. the conversion of a bill of exchange or a note as any other kind of property. Murray v. Burling, 10 Johns. 172; Develin v. Coleman, 50 N. Y. 531; Decker v. Matthews, 12 N. Y. 313. We do not regard the pendency of the other action, commenced at the same time as this, as a defense. That action is an equitable one, brought for a specific performance of the contract between the parties. This action is for a wrongful conversion by the defendant of the draft subsequent to the contract. Paige v. Wilson, 8 Bosw. 294; Webb v. Van Zandt, 16 Abb. Pr. 190. The judgment should be affirmed, with costs.