McCrea v. McClenahan

131 A.D. 247, 115 N.Y.S. 720, 1909 N.Y. App. Div. LEXIS 787

Opinion

Woodward, J.:

This action was brought to recover damages for the conversion of certain goods concededly belonging to the plaintiff and left by him in the possession of the defendant David Stevenson Brewing Company, of which the defendant McClenahan was president at .the time of the alleged conversion, and by whose personal action the conversion was consummated. Upon the trial, the learned justice presiding dismissed the complaint as to the defendant McClenahan, and upon the jury finding a verdict for $2,500 the same was set aside as being excessive. The plaintiff appeals from the judgment dismissing the complaint as to the defendant McClenahan.

We are unable to discover any good reason for dismissing the complaint as against McClenahan. He was the president, and apparently in charge of the brewing company’s business. It was he who refused to give up possession of the chattels concededly belonging to the plaintiff, his refusal being based upon an assumed right to a lien upon the same for storage. The tortious act was his own act, and the fact that he was also acting in behalf of the brewing company does not serve to relieve him from personal responsibility. (Rodney Hunt Machine Co. v. Stewart, 57 Hun, 545, 553.)

The judgment appealed from should be reversed.'

Hirschberg, P. J., Jenks, Gaynor and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.