
    WILLIAM G. PECK and Another, Plaintiffs, v. CHARLES KNOX, Defendant
    The taking possession by a landlord of demised premises, in which there remains fixtures belonging to a tenant, after such tenant has been removed from the premises by “summary proceedings,” is not, of itself, a conversion by the landlord of the tenant’s property so left on the premises.
    Nor is a landlord liable, in an action of trover, for refusing to deliver such property, on demand of the owner, made after the landlord had leased the premises and delivered the possession to another tenant. The demand should be made of the lessee in possession*
    Before Barbour, C.J., Jones and Fithian, JJ.
    
      [Decided June 11, 1869.]
    This was an action to recover the possession or judgment for the value of certain property alleged to belong to plaintiffs, and consisting of store and gas fixtures, mirrors, shelves, awning, glass cases, &c., situated in store No. 126 Fulton street, in New York, valued at $100, and which property, it was alleged, defendant took and wrongfully detained from the plaintiffs.
    The case was tried before Mr. Justice Barbour and a jury, and the following facts were proved,' among others: That the defendant Knox was the owner or landlord of the store No. 126 Fulton street; that in 1866 he leased the premises to one Falkner for a term which would end on the 1st day of May, 1869 ; that Falkner thereupon put a stock of goods in the store, and commenced some kind of mercantile business therein, of what precise character did not appear. Afterward, Falkner sold the property and business and interest in the lease to one Van Buren. Subsequently to that (but when did not appear), the plaintiff Peck bought Van Buren’s goods and business, including the property in question, which was then in the store, and thereupon took the other plaintiff in as a partner, and continued the business or some business. Whether these plaintiffs became assignees of the lease to Falkner did not appear; but they were in possession under it, either as assignees or sub-lessees.
    It further appeared that on and before the 17th of February, 1869, there was rent in arrear and unpaid, due to Knox on the lease to Falkner, of about the sum of $687; and that defendant Knox had commenced “ summary proceedings ” under the statute to eject the tenants (plaintiffs), for non-payment of the rent. On the 17th of February, the rent not having been paid, and judgment and process of dispossession having been rendered and issued in the proceedings above stated, an officer of the court, by virtue of such process, removed the plaintiffs from the premises, and all their goods and property, except the property in question in this action, which being fixed or fastened to the freehold, the officer could not or did not remove it. The plaintiffs gave evidence tending to show that they desired and attempted to remove these fixtures themselves, but were prevented from so doing by the officer. It did not, however, appear that the defendant Knox had any thing to do with this prevention by the officer. The officer, having thus removed the plaintiffs and their goods, late in the afternoon of the 17th of February delivered the keys and possession of the store to defendant’s clerk. It further appeared, that thereupon, on the same day, the keys of the store were_delivered to one William S. Burke, and that on the morning of the 18th of February Knox executed and delivered to Burke a lease of the premises for a year and more for a certain rent. And that in consideration of obtaining the lease, Burke then and there paid to Knox $687.50, being the amount of back rent owing by the outgoing tenants. And Knox thereupon transferred to Burke his claim against such outgoing tenants for such - back rent, together with whatever interest Knox might have (if any) in^the fixtures remaining in the store—Burke immediately entering into possession of the store. Subsequently, on the same day, plaintiffs demanded of Knox the keys, and permission to' enter the premises and remove the property in controversy, which he refused. Plaintiffs then demanded the delivery of the property of Knox, with like refusal on his part, he alleging, as plaintiffs say, that he would have nothing to do with them; and, as he swears, because he had not the possession and could not deliver the property. The plaintiffs also gave evidence tending to show that, pending the summary proceedings to remove plaintiffs, the defendant Knox entered into a verbal agreement with the plaintiff Peck to the effect that, after Knox had obtained possession by virtue of the proceedings, he would execute a new lease to Peck, which he afterward refused to do. This was denied, however, by the defendant Knox. The Court dismissed the complaint, on the ground that there was no proof of wrongful taking or detention of the property. Plaintiffs excepted to the decision, and the exceptions were ordered to be heard in the first instance at the General Term.
    
      Mr. E. Luther Hamilton for plaintiffs.
    The plaintiffs were in possession of the premises under an agreement with the defendant that he would give a lease, and it was fraud on the part of the defendant to enforce the warrant; but the title of the plaintiffs to the property was not changed by the dispossession (Laurence v. Kemp, 1 Duer, 366; Beardsley v. Sherman, 1 Daly, 326).
    Knox directed the marshal not to allow the plaintiffs to remove the fixtures, and this amounts to a conversion of them by Knox (Moore v. Wood, 12 Abb., 395).'
    Where the defendant has once been in possession of the plaintiffs’ property, but has parted with it, claiming ownership, a refusal to deliver it up on demand of the plaintiffs will render him liable for the same in replevin (Latimer v. Wheeler, 38 N. Y., 468 ; Nichols v. Michaels, 23 N. Y., 264).
    The rule is that any unlawful interference with the property of another or exercise of dominion over it, by which the owner is damnified, is sufficient to maintain the action (Latimer v. Wheeler, 38 N. Y., 475).
    
      The original taking being wrongful, no demand was' necessary (Pillsbury v. Webb, 33 Barb., 213), especially as a demand would have been fruitless (Powers v. Bassford, 19 How., 309).
    If a demand were necessary, then the question whether the demand was made or not should have been submitted to the jury? as it was clear that a demand was made.
    The complaint was dismissed evidently on the ground that the agreement of the defendant to give a lease for more than one year was void, not being in writing.
    A parol lease fór more than one year, however, is good for one year (Lounsberry v. Snyder, 31N. Y. R., 514; 5 N. Y., 463).
    The defendant either wrongfully took or wrongfully detained the property and sold it, and got the money for it from Burke, and should pay for it.
    
      Mr. Henry L. Clinton for defendants
    The defendant having, in due form of law, dispossessed the plaintiffs of the store, in which the fixtures in litigation were, and having leased the store to Burke, before the demand made upon him (the defendant) by the plaintiffs, there could be no conversion of the said fixtures by him.
    There can be no conversion where the defendant is not in possession when the demand is made.
    “A mere neglect,on the part of the defendant to deliver upon demand, unless the goods are then in his possession, does not work a conversion of property.” * * * “The ability of the defendant to comply with the demand when made, is an essential part of the proof, on the part of the plaintiffs, to sustain the action for a wrongful conversion” (the Court, per Johnson, J., in Whitney v. Slauson, 30 Barb., 276, page 278).
    In Bowman v. Eaton, 24 Barb., 528, Judge Strong, .at page 532, says: “A refusal to comply with the demand is only evidence of the conversion, where the ability at the time to comply with it is proved.” ' ,
    It is only when a party has the possession or control of property, that. a refusal to deliver on demand constitutes evidence of a conversion (Fillmore v. Horton, 31 How. Pr., 424; General Term of Supreme Court, Eighth District; Hall v. Robinson, 2 Com., 293).
    The plaintiffs, after Falkner and those who claimed under him had been dispossessed, having failed to remove their fixtures, they became a portion of the realty, and the title in them became vested in the owner of the inheritance.
    The fixtures in suit were fastened to the freehold.
    
      “ Fixtures go along with the premises to a lessee, if no reservation be made at the time of the contract; and the tenant must remove the fixtures put up by him before he quits the possession on the expiration of his lease. If not removed during the time, they become the property of the landlord” (2 Kent’s Commentaries, p. 346; 1 Washburn on Real Property).
   By the Court:

Fithian, J.

The question in this case is whether there is any evidence tending to establish a wrongful taking or detention of plaintiffs’ property. The only possession of the property defendant is shown to have had is the constructive possession of the premises in which the "property was on the night and morning of February 17 and 18. This possession was certainly not wrongful. It was delivered to him by the judgment and process of a court of competent jurisdiction. The premises belonged to the defendant. He came rightfully and legally into the possession of them on the night of the 17th of February. The plaintiffs’ property (if any they had) was fixed to defendant’s freehold. And if it was necessary, in receiving lawful and rightful possession of his own property, to receive, also, possession of plaintiffs’ property, such talcing cannot be said to be wrongful.

Heither was the leasing of defendant’s premises, and the delivering possession thereof, including plaintiffs’ fixtures, to Burke, on the 18th of February, such a disposition of the property as in law amounts to a wrongful conversion of the same, or an interference therewith, to the owner’s exclusion. It was not the defendant’s fault that plaintiffs had omitted to remove their fixtures until after the lease under which they were holding was terminated by judgment of dispossession for non-payment of rent. The defendant had a perfect right to lease his premises, or make any other disposition of them he chose. He is not to be barred of that right, or charged with a wrongful conversion, because, in the exercise of it, by delivering possession of his own property to another, it became necessary to deliver, also, possession of a third person’s property, stored on the premises. By so doing, he transfers possession of his own property merely/ in respect to which, plaintiffs have no rights whatever. And the person receiving possession takes it subject to every legal right or claim which plaintiffs had to any property belonging to them remaining upon the premises.

Nor can the defendant be charged with a conversion, or a wrongful detention of the property, by reason of his refusal to deliver, when demanded, on the 18th of February. And this because he had before that rightfully parted with all possession, control, and right of entry of and to the premises wherein the property demanded was situated. He would himself have been a trespasser if he had attempted, without the consent of his tenant, to comply with the demand. It is settled that a demand ■ and refusal is only prima facie evidence of a conversion or wrongful detention. And that, notwithstanding the refusal to deliver, the party refusing may, if he can, show that he had not in fact converted the property to his own use, or detained it wrongfully; as in the case of one having the possession of property as a mere servant or custodian for another, neither claiming nor asserting any interest, or right ®f possession, or control in himself. This principle is so familiar that it is unnecessary to cite authorities to sustain it.

The claim of plaintiffs’ counsel that the defendant Knox had sold the property in question to Burke, and received a consideration therefor, is not sustained by the evidence. Knox did not assume absolutely to sell the property, but only such interest in the same (if any) as he had. If he had or has an interest, plaintiffs cannot object to Ms selling Ms own. If he had none, then notMng was sold, and plaintiffs’ rights are unaffected thereby. If the plaintiffs were wrongfully prevented by the officer from removing the property on the 17th of February, and have been injured thereby, their remedy is against the officer, and not the defendant here.

Exceptions were taken by plaintiffs’ counsel to various rulings of the justice during the trial. But I see no error in those rulings. Indeed, I tMnk all the evidence in respect to the alleged parol agreement to lease the property to the plaintiff Peck could have been properly excluded, as it was not claimed that such alleged agreement was ever perfected so as to become an actual lease, or give plaintiffs any rights of entry to the premises as tenants. The declarations of the officer, not in the presence of defendant, were clearly inadmissible.

The above considerations, if correct, constitute a complete barrier to plaintiffs’ right of recovery in this action. It is therefore unnecessary to consider the other question in the case, as to whether plaintiffs had not lost title to this property, by reason of its being fixed to the freehold, and not removed before the termination of the tenancy, by the judgment and removal on the summary proceedings.

Exceptions overruled, and judgment ordered for defendant on the verdict, with costs.  