
    Joseph Cohen, Plaintiff, v. William Koster, Jr., Defendant.
    First Department,
    July 13, 1909.
    Conversion — stablekeéper not bailee of property stored on his premises without notice — demand — negligence.
    The plaintiff delivered merchandise to a public truckman for transportation. The truckman did not deliver the goods, but. kept them on his truck, drove the same into defendant’s stable and left it for the night. The defendant’s employees unhitched the horses and backed the truck among others which the defendant received on storage. It appeared, further, that the trackman’s drivers unknown to him often sent the trucks by assistants or strangers to the' defendant’s stable at night, and left them there with merchandise upon them, and that the trucks were often called for by strangers in the morning. On the following, day a stranger called for the truck bearing the plaintiff’s merchandise and after describing it and the. horse was allowed to drive the truck away. Thereafter he converted the merchandise.
    
      
      Held, that as the defendant had not received the merchandise for storage for the plaintiff and had no notice that it was upon his premises, he was not a bailee so as to be liable for the conversion.
    To establish a conversion under such circumstances, a demand is necessary, and as the property was not in the defendant’s possession when the demand was made, there was no conversion.
    As the defendant owed no duty to protect such property, he cannot be held for negligence in delivering the truck to the wrong person, for negligence must be based upon a duty negligently performed.
    Clause and McLaughlin, JJ., dissented, with opinion.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Moses R. Ryttenberg, for the plaintiff.
    
      Alfred D. Lind, for the defendant.
   Ingraham, J.:

It appears in this action that the plaintiff was the owner of certain merchandise which he delivered to one McDonald, a public truckman, late in the afternoon of September 3, 1907, for transportation ; that McDonald did not deliver the merchandise that afternoon, but kept it on his truck, drove the truck into the defendant’s stable and left it there; that the defendant’s employees, in ■ the regular course of their duties, unhitched the horses attached to the truck and backed the truck into its usual place among many other trucks which defendant had on storage or livery; that it had been the practice of some of McDonald’s drivers, unknown, however, to McDonald, to send their assistants and sometimes strangers with trucks to the defendant’s stable at night, the trucks having at times merchandise upon them, and that at times strange boys were sent for trucks in the morning; that this practice had continued a number of months. On the morning of September 4, 1907, about the time that McDonald’s truck was usually called for, ■ a young man, a stranger to the defendant, came to the defendant’s stable, the defendant and his employees then being engaged in hitching and sending out several hundred trucks, and asked for McDonald’s truck; that the stranger described the horse that he wanted; the horse described, which belonged to McDonald, was hitched to the truck and the stranger drove it off with the plaintiff’s case of goods on it. The horse -and track were subsequently found abandoned on the street, but no trace of the .casé was .ever discovered. Subsequently the plaintiff’s .assignor demanded' from the-defendant the -case that McDonald had ¿eft on the .defendant’s, premises the night before, which demand was: refused, and -the question submitted is whether the defendant was liable to the-plaintiff for the value of this case of merchandise.

Undoubtedly, McDonald was a bailee and liable to the plaintiff’s-assignor for failure to deliver the merchandise intrusted to him for transportation. But there was no relation between the plaintiff and the defendant.. The defendant received no merchandise for storage for the plaintiff; had no notice of the plaintiff’s owning any merchandise upon his premises, and so far as I can see was under no-obligation to either store this merchandise for the plaintiff or deliver it to the plaintiff on demand. The defendant never voluntarily accepted any of the plaintiff’s assignor’s goods for storage- .and there is no statement that he or his employees ever knew that there was .any merchandise upon McDonald’s track when it. was returned to the .stable for storage' during the night. I cannot. se.e that -defendant was tinder .any (obligation -to store it, protect it or deliver it to the plaintiff’s assignor. - If .the -defendant had received notice -that this merchandise ¡belonged to the plaintiff®assignor, and after ¡such notice had delivered it to a stranger -a different question would have been presented:; but in the absence -of some notice to-the defendant or his -.employees that there was merchandise upon the tra-elc which belonged to the plaintiff’s assignor or to which he was ¡entitled I cannot see that an obligation..existed-on the part of' the defendant to protect this.inerehandise-or that the defendant was-liable for its value because the -same was -not delivered to plaintiff’s assignor on demand. It is plain that a .delivery of the mevchandiseto McDonald would hav-e -discharged the defendant from any liability to the plaintiff’s -assignor. The fact that the track 'with the merchandise upon it was delivered to a -stranger who represented himself as being authorized by McDonald to receive it could not be a conversion of .the plaintiff’s .assignor’s property by -the defendant, for .the defend ant. was -under no -obligation to hold the merchandise-to -the plaintiff’s assignor. "To establish" a conversion of the property a demand was necessary, but when the demand .was made the-property was not in defendant’s possession. There was not, therefore,. a conversion nor could the defendant be liable to the plaintiff’s assignor for negligence in delivering the truck to the wrong person. As before stated,, the defendant owed, no- duty to the plaintiff’s assignor to- protect, his property,, and. a. liability' for negligence must depend upon a duty owed by the. defendant to the plaintiff which the defendant negligently performed. The plaintiff, as- I understand- it,, does not claim liability for negligence but depends upon his cause, of action, for conversion; but: to hol-di the, defendant, liable for conversion it.must appear that he assumed and exercised dominion or control over the property,, and having possession refused to ■deliver it to the owner. The case of McKillop v. Reich (76 App. Dir. 334) is plainly not applicable,., as in that case- the carriages in which the personal property was contained were delivered to the •defendant by the, plaintiff. The personal property in the carriages was- taken from them,, and. under'the direction of the person found in charge of. the stable was- placed in the office and defendant notified that, the plaintiff had left the articles- in. the office,, to which the -defendant responded,, All right.” He thereby became a, bailee of the. property for the plaintiff, and under those circumstances- was held liable for the return of the. articles.. But in this ^ case -the •absence of any notice to the defendant that the plain tiff.’a- assignor's goods were upon liis- premises or under his control, or that he ever assumed or exercised volition over them relieves him front liability.

I think,, therefore,, there- must be judgment for the defendant.

Laughlin and Houghton, JJ., concurred; McLaughlin and Clarke, JJ., dissented.

Clarke, J.

(dissenting):

I dissent: It is- established by the statement of facts that, notwithstanding the signs- and notices. “ Loaded trucks not allowed in ■stables,” “ Hot responsible for merchandise, left on vehicles,” the practice of leaving loaded trucks at the stable had been permitted by defendant for ten years. It is also established that the defendant’s employees, in the regular course of their duties, unhitched the horse attached to McDonald’s truck containing the merchandise in ■controversy, and put the truck in its usual place in the stable. It is also- established that, the defendant himself on the morning of September 4, 1907, harnessed the horse to the truck and personally delivered the horse, truck and goods to an entire stranger who was a thief.

The plaintiff’s cause of action is not based upon a conversion of the goods by the defendant to his own use, nor upon a loss of the goods by accident' while in the defendant’s possession, b,ut is based upon the active participation of the defendant in delivering them to a wrong person, an entire stranger, who turned out to be a thief. The defendant had the physical possession of the goods because he had in his stable the truck upon which they were loaded, and, notwithstanding his regulation, he permitted the truck so loaded to be and remain in his stable.

I think that for the. wrongful delivery the real owner has a right of action. “ The degree of diligence which is exacted of each of the several classes of bailees in respect to the care of the thing bailed has no application to the liability of the bailee in respect to its return or delivery. •' Every bailee is bound at his peril to know that the person to whom he delivers the chattel is the proper person to receive it, and if he delivers it to the wrong person, though acting in perfect good faith, he is nevertheless liable for its conversion.”, (3 Am. & Eng. Ency. of Law [2d ed.], 754, quoted in Sonn v. Smith, 57 App. Div. 372.)

In Willard v. Bridge (4 Barb. 361) the court said : “The judge charged the jury that if they believed the hops had been by negligence or mistake delivered to Newbury, or any one else but the true owner, it was a conversion by the defendant. * *. * But the cause was tried and submitted to the jury upon the assumption that the property had been taken by some person other than the owner from the warehouse of the defendant, and the jury have found that it was delivered to such person by the mistake or negligence of the defendant; that is, that by his act, and not by his mere omission, the property has been lost to the plaintiff. This in law is a conversion of the property for which the defendant is liable in an action of troverl”

In Esmay v. Fanning (9 Barb. 176) the court said : “ The question,, therefore, becomes narrowed down to this: Whether a bailee of a chattel is answerable in trover on showing a delivery to a person not authorized to receive it. In Devereux v. Barclay (2 Barn. & Ald. 702) it was held that trover will lie for the misdelivery of goods by a warehouseman-, although such misdelivery was occasioned by mistake only — and this court, in Packard v. Getman (4 Wend. 613), held that the same action would lie against a common carrier who had delivered the goods by mistake to the wrong person. * * s If trover will lie against a common carrier or a warehouseman for á misdelivery it can, under the like circumstances, be sustained against a bailee for hire or a gratuitous bailee.”

In McKillop v. Reich (76 App. Div. 334) the defendant was the keeper of a livery stable. Two carriages were driven to the defendant’s stable to remain during a "wedding entertainment. Certain personal property contained in the carriages was taken from them, and, under the direction of the person who was found in charge of the stable, these articles were placed in the office. The defendant was outside of the stable at the time, and plaintiff told him he had • left the articles in the office, to which the defendant responded “ all right.” Subsequently plaintiff was unable to get his personal property deposited in the office, and some time later he made a personal demand on the defendant for a return of his property, which was not returned, and the defendant-declined to return the property or to give any explanation for his refusal. The court said: “ Under these circumstances the rule is well established that even a gratuitous 'bailee is liable for the value of the goods,” citing cases.

It is attempted to distinguish this case from the one at bar, because in the McKillop case the defendant said “all right” when told that the personal property had been put in the office, but that simply indicated knowledge and acquiescence, and said knowledge and acquiescence are supplied in the case at bar by the receipt of the truck with the goods on it by the defendant’s employees, their storing it in a given place, and is stronger-against the defend-' ant because of his active participation the next morning in hitching up the team and in personally delivering it with the goods to an entire stranger.

I think, upon the conceded facts, the judgment should be for the plaintiff for $1,228.29.

McLaughlin, J., concurred.

Judgment ordered for defendant. Settle order on notice.  