
    Elizabeth Reich, Appellant, v. Eva S. Cochran and Others, as Executors and Trustees of the Trust Created by the Last Will and Testament of William F. Cochran, Deceased, Substituted in Place and Stead of the Defendant William F. Cochran, Deceased, Respondents.
    First Department,
    June 15, 1906.
    Landlord and tenant — conversion of tenant’s property on dispossession — evidence showing conversion — when no abandonment by tenant — weight of evidence.
    Under a writ of dispossession a landlord is entitled to dominion over the realty only and has no right to retain or use personal property on the premises, not in the nature of fixtures, belonging to the tenant.
    A landlord who on dispossessing a tenant employs a steward formerly in the tenant’s employ and puts him in possession of the tenant’s chattels remaining on the premises with instructions not to allow the tenant access to them is liable for conversion.
    Although it be alleged that the conversion took place on the specific day such instructions were given to the steward, it is not error to admit evidence of similar instructions given to the steward on the following day, or of a refusal of the tenant’s request to be allowed to take the goods away.
    As the property converted consisted of wines, they were not abandoned by the tenant by his failure to remove them before dispossession, as the doctrine of abandonment applies to fixtures only.
    Evidence considered and
    
      Held, that the evidence in favor of the defendant did not so preponderate as to warrant the trial court in setting aside a verdict for the plaintiff.
    Appeal by the plaintiff, Elizabeth Reich, from an order of the Supreme Court, made at the Few York Trial Term and entered in the office of the clerk of the county of Yew York on the 10th day of December, 1904, granting the defendants’ motion to set aside the verdict of a jury theretofore rendered in favor of the plaintiff and granting a new trial of the action.
    
      Alton B. Parker and M. E. Harby, for the appellant.
    
      Percy H. Stewart, for the respondents.
   Houghton, J. :

Plaintiff’s assignor, Lorenz Reich, was a tenant of the Cambridge Hotel, owned by defendants’ testator. Summary proceedings had been instituted by the owner and they resulted in a writ of dispossession, which, was executed March 17, 1893.

At the time the tenant was thus dispossessed he had on hand in .the storeroom of the hotel a quantity of hotel supplies, including wines and liquors. It is claimed that the defendants’ testator, on the day of the dispossession, appropriated to his owm use and couvelted this personal property, of the conceded- 'value, with interest, of $8,216. The tenant and owner assigned his claim to this plaintiff, who brought action which resulted in a verdict by the jury in her favor. On defendants’ motion the trial court set aside this verdict as against the weight of evidence and as contrary to law, and granted a new trial. The plaintiff appeals from the order thus made and insists that the verdict was no.t contrary to law, and that the weight of evidence was wholly in her favor, and that, therefore, the order was not justified. We do not think the verdict was contrary to the law. Upon the plaintiff’s proofs, there was exercised on the 17th of March, 1893, by the defendants’ testator, the right of ownership and assumption of ownership, and an exclusion of dominion and control by the owner sufficient to constitute conversion of the property in question. The right to take possession under the writ to dispossess the tenant related, of course, only to the real property, and gave the owner no right to exercise dominion over it or to use or retain the personal property on the premises belonging to- the tenant.

According to the plaintiff’s proof, the defendants’ testator, on the day of dispossession, summoned the steward of the hotel, in the employ of the tenant, and employed him to continue in that capacity, and instructed hitn not to allow the tenant to go to the storerooms or to any of the departments of the hotel, or to take anything away. While the trial court held the plaintiff strictly to her allegation that the conversion took place on the seventeenth day of March, he permitted, and we think properly, as reflecting upon what the defendants’ testator meant by his direction given on the seventeenth, to be given in evidence a conversation had with the steward on the following day, in which the deceased reminded him that he was in charge of all goods in the hotel, and that he was to make use of them as usual for guests, and ag¿iin refused the tenant’s request to be permitted to take the goods away.

Conversion is defined to be “ ‘ an unauthorized assumption and exercise of the right of n ownership over goods or personal chattels belonging to another, to the alteration of theii- condition or the exclusion of the owner’s rights.’ ” (Industrial & General Trust v. Tod, 170 N. Y. 233, 245.) The plaintiff’s proof came within all the elements of this definition, and she made, therefore, a case proper for a jury to determine. The goods in question were not abandoned by the tenant. They were not fixtures which belonged to the tenant and which he failed to remove. The doctrine of abandonment applies only to fixtures. (Lewis v. O. N. & P. Co., 125 N. Y. 341, 351.) As to ordinary chattels left upon the premises on removal or after eviction, it is the duty of the landlord to notify the tenant to remove them, and in case he does not, to himself cause their removal. (Roberts v. Kain, 6 Robt. 354.)

It remains to be considered whether or not the order was justified because the verdict was against the weight of evidence.

The plaintiff. was necessarily limited in her proof, for she could not testify against the deceased, nor could her assignor, although both were shown to have had interviews respecting the property with the testator. She was, therefore, compelled to rely, in order to prove her case, upon the testimony of the steward Howes. In addition to the facts which have been enumerated, he testified that he remained in the employ of the testator as steward, disbursing the goods from the steward’s department of the hotel to guests, for five days, until the new tenant, Mr. Walter, took possession, and that the testator paid him for his services for that period of time; that the testator directed him to serve lunch to the guests of the hotel on the seventeenth, and that certain of the goods belonging to the tenant were used for that purpose.

JSTothing appears upon the record discrediting this witness. He had been steward for several years of the plaintiff’s assignor, and for many years had acted in that capacity for some of the principal hotels of the city of Hew York; and he made a list of the goods on hand the evening of the sixteenth of March, with their prices, which the defendants accepted as correct.

From the nature of the case, and as almost always transpires when the active participant in a transaction is dead, the defendants were restricted in their proof and were compelled to rely upon proof of minor incidents tending to show that what was claimed to have occurred could not have transpired. To do this they proved that the testator was .at the Holland House, and did not, to the knowledge of the witness, come to the Cambridge Hotel until late in the afternoon of March seventeenth, and hence asked it to be inferred that he could not have had the conversation with Howes to which he testified, nor could he have directed him to serve lunch to the guests of the hotel on that day. In addition, that the tenant was not actually dispossessed until about four o’clock in the afternoon, and that the tenant himself asked permission of the testator’s representative, who was looking after the dispossession, to serve lunch to the guests of the hotel on that day, and that he did so, and that such representative repeatedly told the tenant to remove all the goods which belonged to him; and that upon the following day there was delivered to the tenant, in behalf of the testator, a written demand that he remove his goods from the premises at once, in default of which they would be removed by the owner of the building and placed on storage.

The tenant dealt in wines, and had on hand large casks of wine difficult of removal, which were stored in a different place on the premises from the goods in question. The testimony discloses that the immediate removal of these goods was a subject of discussion, and that they were not in fact removed until about ten days later, and it is claimed that this written notice related to goods of this character, and not to the goods in controversy, and it would seem that such was the fact.

The plaintiff’s assignor was sworn as a witness, and he did not deny, as he might have done, that he himself served the lunch to the guests of the hotel on March seventeenth. The defendants proved besides that the lease to the new tenant, Walter, was drawn on the eighteenth of March at -the hotel, and the draftsman, although not knowing positively, assumed by his testimony that Walter went into immediate possession. Walter was not called as a witness, and the record does not disclose that he was dead or beyond the jurisdiction of the court. His testimony, if it could be obtained, would have been of great importance to the defendants if it would have shown that the testator did not run the hotel the five days which Howes testified he did, and thus that during that period lie did not use the supplies which were on hand belonging to plaintiff’s assignor at the time of the eviction. In the absence of any explanation it must be assumed that Walter’s testimony would not have been favorable to the defendants in this respect, else he would have been called as a witness or his absence accounted for.

We have enumerated all the material facts developed by each party, and we do not think the evidence so preponderated in defendants’ favor as to justify the trial court in setting the verdict aside as against the weight of evidence. In so concluding we are not unmindful of the heed which should be given, and which it is the practice of this court to give in motions of this character, to the views of the trial judge, who has had opportunity to see the witnesses upon the stand as they testified, and to observe their candor or lack of candor in giving their testimony.

The motion for a new trial was made npon all the grounds enumerated in section 999 of the Code. In passing upon the motion, however, the court expressed grave doubts as to the propriety of his having submitted the case to the jury as matter of law. In our view it was entirely proper so to do. Had the trial court been of this opinion, he doubtless would have denied the defendants’ motion.

The question is not whether the witnesses upon the one side or upon the other told the truth, but rather one of how much proof each side was able to produce upon the vital question involved. Judging the case by this standard, we think the proof preponderated in plaintiff’s favor, and, therefore, that the order granting a new trial should be reversed and the verdict reinstated, with costs to the appellant.

O’Brien, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Order reversed and verdict reinstated, with costs to appellant. Order filed.  