
    Ossian D. Ashley v. Gilbert N. Marshall, Impleaded with Solomon Steckel.
    Where no objection was made to the defendant’s answer on account of its setting up a counterclaim arising since the commencement of the action; nor to the defendant’s proof offered in support of it, that it related to matters arising after suit brought; nor was the point raised by exception ■ to the report of the referee: Held, that the plaintiff was not in a situation to avail himself of the objection on appeal. ■
    The plaintiff procured an injunction to be issued forbidding the sale, removal, or further interference with the furniture, &e., in a hotel by the defendant. The defendant, in his answer, claimed title to the property, under a mortgage executed by one S., and alleged that he had taken possession of the property, by virtue thereof, but was prevented from removing and disposing of the same by the service of the injunction, whereby he had lost his debt against S., and had sustained damages to the amount thereof; for which amount he claimed judgment, with interest and costs. It was found by the referee that the plaintiff, availing himself of the injunction, had possessed himself of, and sold at auction, certain property belonging to S., upon which the defendant’s mortgage was a lien: Held, that although the defendant had not averred the fact of a sale of the property in his answer, the defense of a counterclaim, if admissible under the pleadings, in point of time, was sufficiently set forth in the answer, and established by the evidence, to justify its allowance by the referee.
    It is not a ground of exception to the report of a referee that the referee has not found certain facts; especially where he was not requested to find them, and has not refused to do so.
    
      Appeal from a judgment of the Supreme Court affirming a judgment entered on the report of a referee.
    
    The action was commenced by service of a summons on the, defendant, Marshall, 26th May, 1856f The defendant, Steckel, was not served and did not appear. The pleadings were amended during the trial. The following is an abstract thereof as so amended: The complaint alleges that the plaintiff was and is the owner of certain articles of furniture, specifically described, of the value of $1,200. That they composed the furniture of a hotel called the Jefferson County House. That plaintiff was and is lessee of said premises, and had the right to continue the business of tavern keeping therein for five years; and that the lease, furniture, and good-will of the business were worth $1,000 and upwards. That the plaintiff, for a short time, had permitted the defendant, Steckel, to use said furniture,, but without giving him any right to retain, or have, or acquire any vested interest therein. That the defendant, Marshall, pretended to have obtained or acquired some right in the premises and furniture, and had sent men and broken and entered the hotel, -placed men to keep and guard the furniture, driven the servants of the plaintiff therefrom, nailed up the doors, and advertised the furniture for sale, and thereby broken up the business and destroyed the goodwill of said hotel, damaged the value of the plaintiff’s lease and compelled him to surrender the same, by which acts a large portion of such furniture was carried away and stolen from said premises, and alleging damage to the plaintiff by such-acts, in the amount,of $1,000. The complaint prayed for damages' for the trespass as above in $1,000, and an injunction preventing the defendant from selling, removing or interfering with the furniture. It prayed, also, for judgment against the defendant, Marshall, - declaring Marshall’s title void, and for a surrender of the premises and furniture, with damages for his interference, damages to the business, and damages to the price, sale and value of the furniture' and for general relief. The answer of the defendant, Marshall, sets up -that on 13th November, 1855, the defendant, Steckel, was indebted to him in $555.23, falling due in October, November and December, 1855. That on that day Steckel, for securing said sum, executed a chattel mortgage to Marshall of various' articles of furniture in the Jefferson County House, some of which he believed to be those described in the complaint, with the usual provision authorizing him to take possession and sell in case of default; and that said mortgage was filed on the 14th November, 1855. That at that time Steckel was lawful owner of the property described in the mortgage. That he made default, whereby the defendant acquired a right to take possession of such property, and to sell the same. That pursuant to such right the defendant had taken possession thereof, and was about to remove and dispose of the same for the purpose of realizing his debt, but was prevented by the plaintiff's injunction, whereby he had lost his debt, and suffered damage to the amount of his claim against Steckel thus secured by mortgage. The defendant then generally denied the other allegations of the complaint, and demanded judgment of dismissal, and for $555.23 damages caused by said injunction, and interest and costs. This cause was referred to Hon. A. Conkling to hear and determine all the issues therein. On the 15th March, 1858, the said referee made his report in favor of the defendant, Marshall, awarding judgment in his favor for $131.28, with costs, to which report the plaintiff duly excepted. The leading facts of the case are as follows:
    In the autumn of the year 1853, the plaintiff in this action purchased of one Thomas Cramer a lease of certain premises in the city of Hew York, known as the “Jefferson House,” with the furniture therein, and placed one Doolittle, the father and agent of the plaintiff, in possession thereof. Doolittle occupied it as a tavern until May, 1855, when, without the knowledge or approbation of the plaintiff, he permitted the defendant, Steckel, to take possession and use the premises as a tavern, for the purpose of enabling him to earn money sufficient to pay a debt then owing from him to Doolittle. While Steckel was so in possession, he purchased additional articles of furniture and executed a mortgage upon the furniture, then upon the premises, to the defendant Marshall, for the purpose of securing a debt due from him to Marshall. The mortgage debt having matured, and Steckel having absconded, .Marshall, about the first of May, 1856, undertook to foreclose his mortgage, and for that purpore'went upon the premises and nailed up the doors of the rooms in which the furniture had been placed,e and advertised it for sale. The plaintiff thereupon commenced this action, for the relief before-mentioned, and also to restrain, by injunction,' the further «interference of Marshall with the premises and furniture, and claiming damages for the trespasses already committed. Two days after the service of this injunction, (May 24th, 1856,) Marshall took the furniture excepted in the injunction, to wit:, one carpet, one sofa, four chairs, and one small table, and carried it away. He was told by the plaintiff’s agent, at the time he so took away the furniture, to take away everything that belonged to Steckel. ' The plaintiff afterwards, and about the middle of July following, sold the furniture by auction. The defendant Marshall, without seeking to dissolve the injunction, answered, setting forth his claim against Steckel, consisting of three promissory notes and an open account, amounting, in all, to the sum of $555.23; the execution of the mortgage by Steckel to secure the payment of this claim; averring the validity of the mortgage, and claiming judgment against the plaintiff for the amount of his claim against Steckel, with interest, on the ground that the plaintiff, by suing out the injunction, had prevented him from collecting it out of the furniture in question. The referee found that most of the furniture in the house belonged to the plaintiff, and that he was the lessee of the premises for a term then. unexpired; that Steckel had mortgaged all the furniture in the house to Marshall; that Marshall went to the hotel for the purpose of taking possession of the furniture therein, and with a strong hand nailed up the doors of the rooms containing it, and caused it to be advertised for sale; that a few days afterwards the plaintiff, availing himself of the injunction order granted him in this action to restrain the defendant Marshall from further intermeddlipg with said furniture, proceeded to take possession and subsequently to sell the same by auction; that Steckel, while in possession of the premises, had bought and placed in the house furniture which cost him $208.31, which belonged to him at the time of the execution of the mortgage; that there is no evidence of the real value of the ,007 property so bought by Steckel at the time the ’plaintiff,took possession of it; that its value can only be determined by arbitrary hypothesis. He, however, supposes it to have lost one-third of its value by use, and, finds that ‘to be a reasonable estimate; and deducting that third, finds its value to- be the remaining two-thirds, viz., $138.87; that there is no satisfactory evidence that the plaintiff sustained any pecuniary “ loss or damage” from the interruption of the business of the hotel caused by Marshall’s interference with the furniture; and that there is no evidence by which “ such loss or damage,” if any, can, be estimated. The referee concludes: lf Upon these facts I am of opinion, in point of law, * * * that damages to the amount of *$25 ought to be awarded to the plaintiff against the defendant Marshall for his forcible and unlawful intrusion into the hotel. That the above-mentioned gum of $138.87, with interest from the first day of June, 1856, being $17.41, ought to be awarded to the defendantMarshall against the plaintiff as damages on account of the conversion by the-plaintiff of the defendant Marshall’s share of the furniture.” He thereupon directs judgment against the plaintiff for the sum of $131.28, with costs. * * * Judgment was thereupon entered up against the plaintiff for $318.17 dam* ages and costs. From this judgment the plaintiff appealed to the general term. The judgment having been affirmed—* but without costs of the appeal—by the general term, the plaintiff appealed to" this court. The case was submitted on printed points by
    
      J. T. Williams, for plaintiff (appellant.)
    
      Abram Wakeman, for defendant (respondent.)
   Hogeboom, J.

The plaintiff relies principally upon three grounds to reverse the judgment of the 'court below: 1. That the answer lays no foundation for the judgment; 2. That the conclusion of law does not follow, and is not supported by the facts; 3. That Marshall’s testimony was improperly admitted.

1. The form of action, though somewhat anomalous, appears'to be in effect a special action on the case to recover damages for a forcible and unlawful-entry by the defendant upon the plaintiff’s premises resulting in serious injury to the plaintiff’s lease, business and furniture, and also to obtain an injunction forbidding any sale, removal, or further interference with the furniture and personal property in the hotel. Upon the complaint in the action, and prior to its service upon the defendant, the plaintiff obtained the injunction therein prayed for, which was subsequently served upon the defendant—.probably in connection with the complaint.

The defendant’s answer, though somewhat informal, claims title to the property under the Steokel mortgage, and alleges that the defendant'took possession of it by virtue thereof, and was about to remove and dispose of the same, but was prevented from doing'so by the service of the ipjunction, whereby the defendant lost his debt against Steckel and sustained damages to the amount thereof; for which amount he claims judgment, with interest and costs.

Strictly speaking, the act of the plaintiff in procuring and serving the injunction would, ordinarily, be an act at or after the commencement of the action, and therefore one the damages for which' could not be set up as a counterclaim in a pleading which is presumed to state the claims of the parties as existing at the time of bringing the suit; but as the act-of the plaintiff related to the very property which was the subject of the action, and materially affected the defendant’s rights and defense therein, I do not see why it could not have been set up ip a subsequent or supplemental answer, and have thus been rendered effectual to the defendant. In the condition in which the case is presented to us, I do not regard this as material. There does not appear to have been any objection made to the defendant’s answer on account of its setting up a counterclaim arising since the commencement of the .action; nor to the defendant’s proof offered in support of it, that it related to matters arising after suit brought. And in the fifteen specific exceptions which the plaintiff makes to the referee’s report, there is not one which covers the objection now taken. Moreover, the case states that in the progress of the hearing the pleadings were amended by consent, and as the matter of such amendment is not shown, we may, perhaps, presume that it embraced this very point. It may be added, that as the injunction bears date on the 25th day of May, 1856, and the action was commenced on the day following, and the time of service of the injunction is not shown, it is just possible that the injunction was served prior to the service of the summons; and if so, it would let in without amendment or supplement the counterclaim on which the defendant relies. For these reasons, I think the plaintiff is not in a situation to avail himself of this point.

The defense, if admissible under the pleadings, in point of time, was, I think, sufficiently set forth in' the answer, and established by the evidence to justify its allowance by the referee. The plaintiff had improperly deprived the defendant of so much of the property as was credited to him in the referee’s report. The seizure of it by the plaintiff as his own against the will of the defendant, was a conversion. Its subsequent sale by the plaintiff, whatever light it might throw upon his motives and intent, and upon the price and value of the property, was not essential to create a cause of action in the defendant. Although the defendant, therefore, has not in his answer averred the fact of a sale, nor set up in very distinct terms a specific counterclaim for the value of the property, he has distinctly alleged .that the plaintiff deprived him of its possession and caused its entire loss to him, and that he claims reimbursement therefor to the amount of his debt against Steckel. I think the plaintiff must fail on this ground of reversal.

2. The second proposition on which the plaintiff relies is, that the conclusion of' law does not follow, and is not supported by the facts. This proposition is a very general one, and as it is not apparently sustained by an examination of the referee’s report, which seems very properly to base its conclusions of law on the facts recited and found, it will be necessary to look further into the plaintiff’s brief to see the precise point intended to be raised.

It is said that the referee does not find that the furniture purchased by Steckel was included in the mortgage to Marshall, or passed to him under it1, or that it was taken, sold, or in any manner interfered with, by the plaintiff. ' I think the contrary of all this is fairly inferrible from the referee’s report; and if it is not, that the point is not available to the plaintiff here. It is a question of fact which cannot reach this court. It is not the case of a finding wholly unsupported by evidence; nor is the point presented in any available form by way of exception to the referee’s report. Several of the plaintiff’s exceptions to the referee’s report are to his not finding certaih facts. This is not a ground of exception, especially as he was not requested to find them, and has not refused to do so.

It is said that the referee has committed ah error in law, because he has determined the value of the defendant’s property at the time of its conversion by the plaintiff, by “arbitrary hypothesis.” This part of the report must be read and expounded in connection with the case and with the other facts found by the referee. . The value of the property purchased by Steckel does appear by the evidence, and is specifically stated by the referee. It is further proved to have been in use, and to have been more or less impaired by wear and tear. The precise amount of the deterioration is not shownj but it was legitimate for the referee to estimate it under the evidence. He did so by deducting one-third from its valtie, which he says he considers, under all the circumstances, a reasonable estimate, and assesses the value accordingly. This, notwithstanding the language used by the referee, is not a case where there is no evidence tending to show the real value of the property at the time of the conversion, nor a determination of its value by arbitrary hypothesis.

It is suggested that the referee committed a further error in allowing for a conversion of the property after suit brought, and interest upon the value of the property from a date pl'ior to the actual conversion. It is said there was no conversion otherwise than by the sale of the property or the service of the injunction; that these were both subsequent to the commencement of the suit, and subsequent to the time from which interest is allowed. This point has been sufficiently discussed in what has been heretofore said, except as to the allowance of interest. As to this, it is sufficient to say that the date fixed by the referee is sustained by the evidence, and is sa probable as any other specific day which could be fixed; and there is no evidence in the case on which it could be said that it is erroneous.

3. Again, it is said that the referee erred in admitting the testimony of Marshall. The testimony here referred to consists of the declarations of Doolittle, the father' and agent of the plaintiff, tending to show title tó the furniture in Doolittle- himself. Aside from the fact that there is some color for their admissibility on the ground that Doolittle himself swears, in unqualified terms, that he was the agent of the. plaintiff in regard to the furniture, I think the objection may well be over-ruled, for the reason that the testimony did not, by- possibility, prejudice the plaintiff. The referee has found, in express terms, that he did not rely'in any degree on these declarations of Doolittie. He states, amoUg other facts found by him, “ that af the commencement of this action, most of the furniture mentioned in the complaint, and therein stated to be in the hotel mentioned therein,-belonged to the plaintiff,” and he concludes: ‘.‘Upon these facts I am of opinion, in point of law: 1. Thát the mortgage from- Steckel to the defendant, Marshall, was ineffectual with regard to so much of the furniture as belonged to the plaintiff, notwithstanding Marshall had been induced to trust Steckel by the false assurances given by one Lucius Doolittle, (the father of the plaintiff, and his agent, to negotiate a sale of the furniture and of the plaintiff’s unexpired term in the hotel,) that the furniture had belonged to him, Doolittle, and by him had been sold to Steckel.”

After such an explicit statement by the referee, I think it impossible to say, in the language of the cases, that “the evidence had any bearing upon the issue, and could possibly have had an influence upon the verdict.” It is only in such cases that a new trial should be granted for the admission of improper evidence. (Murray v. Smith, 1 Duer, 412; Marquand v. Webb, 16 Johns. 90; Osgood v. Manhattan Company, 3 Cow. 618; Worral v. Parmelee, 1 Comst. 519; Shorter v. The People, 2 Comst. 193.)

4. It only remains to notice two or three minor points made by the plaintiff. It is said the referee made a mistake of $10 in footing Up the value of Steckel’s furniture, making it $208.31 instead of $198.31, and that, therefore, the judgment must be reversed. As we have not before us the prices-which the referee allowed,' we cannot say that this mistake has actually occurred, nor if it had, that it is remediable here. And if it be so, the remedy would be to deduct-two-thirds of $10 from the amount which the referee allowed, (which was two-thirds of $208.31,) instead of sending the case back for a new trial.

The same remark applies to the suggestion that Marshall carried away four chairs for which the referee has made no deduction. It is hardly worth while, in the ultimate forum for the settlement of grave questions of law, to present so trivial and by no means apparent an error of fact. ' It is not clear that the error has occurred.

It is said that the referee erred in awarding costs against the plaintiff. If the action was, as the supreme court decides, a common law action, he had no alternative. If it was, as the plaintiff claims, an equity action, he had the discretion to do so; and that. discretion has not been abused. ‘ If the supreme court erred in not awarding the costs of the appeal against the plaintiff, that is an error of which the plaintiff cannot complain.

I think the judgment of the supreme court should be affirmed with costs-.

All the judges concurring, judgment affirmed.  