
    NORA HOUGH, Appellant, v. PETER BOWE, et al., Respondents.
    
      Conversion of property.—Statute of fratids—Actual change of possession— Burden of proof—special damage—mitigation.
    
    Where, in an action for special damages for conversion, defendant attempts to justify under an attachment against the property of a person who has sold the property in question to the plaintiff, and there is evidence of the sale and a valuable consideration paid by plaintiff therefor before the levy, and there is some explanation given by the plaintiff why there has not been a visible change of possession, the case is one for the consideration of the jury, and a dismissal of the complaint is erroneous. Under the facts in such a case showing a purchase for a valuable consideration before the levy, the burden of proof is upon the defendant to establish the fraudulent character of the transfer in case the jury find such purchase for a valuable consideration.
    
      Decided January 5, 1885.
    The payment by the plaintiff of the attaching creditor’s claim to the sheriff, does not constitute a bar to the action, it appearing that the payment was not voluntary, but compulsory and under protest, and made to enable plaintiff to recover possession of the property.
    The return of the goods upon such payment, and their acceptance by the plaintiff, do not constitute a complete satisfaction, but can be considered only in mitigation of damages, and the money paid by plaintiff to procure such return, constitutes special damages.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal by plaintiff from judgment dismissing complaint.
    This action was brought to recover damages alleged to have been sustained by plaintiff by reason of the entry by defendants under an attachment against a third party, upon the premises occupied by her as a liquor store, and the taking and conversion of portions of the stock, interfering with her business, injuries to the stock by handling, and the recovery of §604.80, paid by plaintiff to defendants to secure the return of the residue of the stock.
    At the close of plaintiff’s testimony the court dismissed the complaint.
    Further facts appear in the opinion.
    
      Louis J. Grant and Herbert Kettell, for appellant.
    The money paid to secure the return of the goods is recoverable herein (2 Sedgwick Damages 414; 1 Chitty, 396 ; Ford v. Williams, 24 N. Y. 366 ; Murray v. Burling, 10 John. 175 ; Baker v. Freeman, 9 Wend. 36 ; Deluce v. Kelly, 5 Week. Dig. 32 ; Vedder v. Van Buren, 14 Hun, 251; Woodham v. Gelston, 1 John. 137; Comstock v. Hier, 73 N. Y. 277).
    
      Plaintiff has an election to bring trover or an action for money had and received.
    In trespass de bon. asp. the return of the property before suit cannot be a plea in bar, while the action is for taking and detention as well as for value, nor for the same reason can it be pleaded puis darrein. It follows that it can only go in the mitigation of damages, otherwise plaintiff will recover for injury never received (6 Bacon’s Abdgt. 628 ; Vosburgh v. Welsh, 11 John. 175 ; Torry v. Blake, 58 N. Y. 191; Butler v. Muffin, 1 Den. 407 ; Reynolds v. Shuler, 5 Cow. 323 ; Shipwich v. Blanchard, 6 T. R. 298).
    Expense of recovering property is recoverable in an action of trespass de bon. asp. (Gray v. Bullard, 22 Minn. 278).
    Supposing that quare clausum frágil and de bonis asportatis are here united as they arise out of the same transaction, there is no difficulty (Policy v. Wilkisson, 5 Civ. Proc. 135).
    The evidence of payment under duress is conclusive (Scholey v. Mumford, 60 N. Y. 498).
    
      Charles F. MacLean, and Joseph Ullman, for respondents.
   By the Court.

Freedman, J.

The gravamen of the complaint is that the defendants wrongfully took certain goods of the plaintiff, and the recovery sought is mostly for special damages. At the trial the defendants aS-tempted to justify under ah attachment issued against the property of plaintiff’s nephew, John J. McCann. At the close of plaintiff’s case it appeared that prior to the levy upon the goods in question there had been a sale, sufficient at least in form, of the goods by McCann to the plaintiff, and there was evidence of a valuable consideration paid by the plaintiff. If, in addition to this, it had also appeared that there was an immediate and actual change of possession, plaintiff’s title could only have been defeated by proof that she had actual knowledge or belief that the sale to her was made by McCann with intent on on Ms part to defraud Ms creditors (Parker v. Conner, 93 N. Y. 118). But there was not sufficient, if any, evidence of an immediate and actual change of possession as required by statute. In consequence of the absence of such proof, the transaction was presumptively fraudulent agamst creditors. This being so, it may perhaps be a debatable question whether the burden was not upon the plaintiff throughout to prove that it was m good faith and without any intent to defraud creditors, or whether, m view of plaintiff’s proof that she had purchased before the levy and paid a valuable consideration, the burden was not cast upon the defendants to establish the fraudulent character of the transaction. From what was said by the learned judges of the court of appeals, who delivered the opimons in Starin v. Kelly (88 N. Y. 418), and Murphy v. Briggs (89 N. Y. 446), it would seem that the burden rested upon the defendants, in case the jury found a purchase for a valuable consideration. But in either case, upon the proofs given by the plaintiff to the effect that she had purchased before the levy and paid a valuable consideration, and especially as she gave some explanation why there had not been a more visible change of possession than there was, the case was one for the jury, and the dismissal of the complaint was erroneous, unless the payment by the plaintiff of the attaching creditor’s claim to the sheriff constitutes a bar to the action. In my judgment it does not, under the circumstances of this case.

The complaint avers that by reason of the unlawful taking and the detention of her property, the plaintiff was compelled to pay, and did pay, said claim to the sheriff, in order to obtain the return of her goods, and that notwithstanding such payment, all of the goods taken were not returned to her. It may be a question whether the plaintiff gave sufficient competent evidence of a partial loss of the goods. But she showed, among other things, that the payment made by her was not a voluntary one, but that it was compulsory and under protest. The credibility of this testimony was for the jury. This being so, the return of the goods and their acceptance by "the plaintiff cannot be deemed to constitute in law a complete satisfaction. As the case stands at present, the return of the goods and their acceptance by the plaintiff go only in mitigation, and the money paid by the plaintiff to procure such return is special damage.

The conclusion reached as stated, renders an examination of the other questions involved unnecessary.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Van Vorst, J., concurred.  