
    John O. Heald, Resp’t, v. Robert W. MacGowan, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 3,1889.)
    
    1. Assignment fob benefit of creditors—Partnership—Right of one PARTNER TO MAKE.
    One partner may make a general assignment of partnership property for benefit of creditors, being authorized to do so, in his discretion, on the part of the absent partner by letter. Following Klump v. Gwrdener, 15 N. Y. State Rep., 100.
    2. Trover and conversion—Demand and refusal.
    In an action of conversion for certain stereotype plates against one who was in possession of the goods at the time of assignment, of which the defendant had due notice, but who, disregarding said assignment, after-wards caused the same to be levied on and sold by the sheriff under a judgment against the plaintiff’s assignors—the defendant is not permitted to answer that the goods are not in his possession or control when the assignee makes demand for them. The conversion consisted in this assertion of title by the defendant to the plates and the unlawful disposition of them, and did not depend upon the demand and refusal,
    3. Same—Evidence—When books of account admissible.
    The defendant’s books would have been competent evidence, if defendant had complied with the requirements of law as to the admission of books of account in evidence. Books containing entries made by those whose duty it was to make them in the usual course of business, are competent when other requisites are sufficiently established.
    4. Same—Measure of damages.
    The proper rule of damages was prescribed by the trial jury, namely, the value of the property at the time of the conversion. In estimating that value, proof of the cost of the plates would be admissible.
    5. Appeal—Practice—Re-argument.
    A re-argument will not be granted, unless some question submitted by counsel, and decision of the case has been overlooked, or that the decision is in conflict with an express statute, or with a controlling decision to which the attentive of the court was not drawn, through the oversight of counsel.
    The facts appear in the opinion.
    
      King & Clement (Noah Davis, of counsel), for app’lt; B. P, StarbucJc, for resp’t.
   Per Curiam.

This is an action for the conversion of certain stereotype plates bought by the plaintiff as assignee of G. H. Gardiner & Co., under a general assignment for the benefit of creditors.

We are of opinion that no error in the trial of the case is shown by the exceptions. The validity of the assignment, for want of sufficient legal authority in Mr. Daggett, one of the partners of G. M. Gardiner & Co., to execute it, and the rulings of the court admitting and excluding evidence as to the value of the property, and in the charge and refusai to charge in respect to such value, are the points-raised by the exceptions in the case.

The first matter assigned as error is that the court erred in refusing to dismiss the complaint or direct a verdict on the ground of the validity of the assignment, for the reason that it was executed by Mr. Daggett alone and was not. sufficiently authorized by his partner, Mr. Gardiner. As to this it is only necessary to say that the question has been passed upon by the general term of the supreme court, in the case of Klump v. Gardener (15 N. Y. State Rep., 100), and this assignment has been held to have been authorized by the letter of the absent partner, and to be valid, and that this decision has since been affirmed by the court of appeals. 22 N. Y. State Rep., 672.

There can be no doubt of the correctness of the ruling in refusing to dismiss, upon the ground that the property was-not in defendant’s possession or under his control at the time it was demanded of him, in view of the evidence in the case that in October, 1885, about two months after the assignment, and with notice thereof, the defendant brought-an action against the assignors and obtained a judgment, by default in the city court, and caused the sheriff to levy upon and make sale of the plates to his book-keeper, for a trifling sum, through whom he subsequently transferred them to Arkell & Douglas. There being evidence in the case that the defendant had wrongfully disposed of the plates, it would not have been proper for the court to take the case from the jury upon this ground. The conversion consisted of this assertion of title to the plates, and the unlawful disposition of them, and did not depend upon the-demand and refusal.

There was no error committed in excluding the ’account. The account produced was claimed to be the ledger account of Gardiner & Go., with the defendant. It was not shown that it had ever been rendered to the plaintiff’s assignors in the course of dealings between them and the defendant, and without any effort to furnish the due preliminary proof, the defendants books would have been competent evidence-but for the failure to comply with the requirements of law as to the admissibility of books of account in evidence. Books containing entries made by those whose duty it was to make them in the usual course of business, are competent when other requisites are sufficiently established. The defendant sought to put his accounts in evidence without-complying with the rules governing their admission.

The rulings of the court in reference to the evidence of value, are not open to objection, nor is any part of the charge as to the measure of damages. The proper rule of damages was prescribed by the judge, namely, the value of the property at the time of the conversion; in estimating that value, proof of the cost of the plates, and the cost of replacing them, and that the plates had a use which was a. valuable one, and all proof in reference to the usefulness of the plates to the plaintiff, was material and relevant, and was properly admitted. These plates would doubtless be of trifling value to many, for they had no market value. _ The actual value to one who owns and has uses for them, is the just rule of damages in an action against him who converts them to his own use.

We think the case was properly and carefully submitted to the jury, and do not think that the verdict should be disturbed. Judgment and order affirmed, with costs.

Per Curiam.

A comparison of the points presented to the court on appeal with the opinion delivered will show that all of them were duly considered, and we think correctly decided.

A re-argument will not be granted unless the court can see that some question 'submitted by counsel, and_ decisive of the case, has been overlooked, or that the decision is in conflict with an express statute, or with a controlling decision to which the attention of the court was not drawn through the oversight of counsel. Mount v. Mitchell, 32 N. Y., 702; Curley v. Tomlinson, 5 Daly, 283.

No such grounds are made apparent in this case, and the motion must therefore be denied with costs.  