
    PURVES against MOLTZ.
    
      New York Superior Court; Special Term,
    
    
      March, 1867.
    Demand before Suit.
    Where goods are delivered by mistake to one who has no right to the possession, and he, instead of endeavoring to correct the mistake, lends himself, to favor it, and without authority performs services respecting them, and claims thereby a lien, he may be regarded as a wrong-doer from the beginning, and .an action will lie against him without demand.
    The plaintiff in this action having purchased a sewing-machine, the vendor gave orders to a carrier to deliver the machine to the plaintiff at his address. The .carrier by reason of losing the directions delivered the machine to defendant.
    The machine being out of order, defendant, who- was a machinist, paid the expressage and repaired the machine, his charges therefor being $9.25, which he insisted upon having before he gave up the machine.
    Ho demand, or time or place of conversion was stated in the comlaint, and at the trial defendant’s counsel moved to dismiss the. complaint, upon the ground that these were material facts which should have, been alleged. The motion was denied, and the . ruling was excepted to. The same motion was again renewed at the close of the plaintiff’s case, when the proofs were all in, which were denied and excepted to.
    The jury found a verdict for the plaintiff, both for damages, and for the value of the machine, as assessed by them; whereupon the defendant moved for a new trial, upon the ground that a demand and refusal should have been alleged and proved, in order to enable- the plaintiff to maintain his action.
    
      A. H. Reavey, for the defendant;
    cited Fuller v. Lewis, 3 Abb. Pr., 383; Gardner v. Humphrey, 10 Johns., 53; Jackson v. Rogers, 11 Id., 33; Stevens v. Hyde, 32 Barb., 171; Hew York Car Oil Co. v. Richmond, 10 Abb. Pr., 185; S. C,, 6 Bosw., 213.
    
      Hart & Boyce, for the plaintiff, opposed.
   Robertson, Ch. J.

The action in this case is for goods wrongfully taken and detained. The complaint alleges them to have been so taken, without any demand for their delivery, which would be necessary to show a right of action, in case the goods came rightfully into the defendant’s possession, and they were subsequently wrongfully detained (N. Y. C. Oil Co., v. Richmond, 6 Bosw., 213; S. C., 10 Abb. Pr., 185). Such demand was necessary to be alleged in an action for mere wrongful detention, where the original possession was lawful, and a demurrer would lie for want of it.

In this case the evidence showed that the machine sued for was delivered to the defendant by a blunder; that he did nothing when he received such machine to correct such mistake, but rather lent himself to favoring it. He never had' any communication with any one respecting it before, had no reason to believe that it was intended for him, yet received it into his possession without authority from the owner, and having good, reason to believe from the statement of the express driver that it was not intended for him. If he had done nothing more than become a mere bailee in good faith, he probably would not have been liable to an action of wrongful taking. But forthwith, after receiving it, he commenced to make repairs upon it, without any request or direction from any one—no such purpose having been, stated by the party leaving it. Having made such repairs wrongfully, lie claimed a lien on the machine for their value, which of course made his detention wrongful. Such conduct may be made to relate back to the original receipt of it, so as to throw light upon the motive for taking and keeping it. If he took it, knowing of the mistake, and intending to get a job and compel the owner to pay for it, or retain possession until he did, he did not receive it for a legitimate purpose with the plaintiff’s assent, and was a wrong-doer from the beginning. He knew the expressman had no authority to deliver it to him, and if he sought to take advantage of his neglect or mistake he was not an innocent bailee.

Larceny may be established by the evidence which the subsequent conduct of a party affords of the purpose of the original taking, although the article may be voluntarily delivered. I see no reason why a tort may not also be established by the same means. If the defendant had instantly demolished the machine there would have been no doubt as to the character of the original taking. I cannot perceive any difference in principle between that cáse and this. 'The verdict of the jury is therefore conclusive, and the new trial must be denied with $10 costs.  