
    BEBINGER v. SWEET.
    
      N. Y. Supreme Court, Third Department; General Term,
    January, 1876.
    Cause of Action.—Malicious Abuse of Process.—Conversion.
    A complaint alleging that defendant led plaintiff into making a hard and unconscionable lease, and then, after plaintiff had sown crops, &c., turned him off, and procured his arrest on a malicious charge of embezzlement, and took possession of Ms household goods, &c., and that all these acts were in pursuance of defendant’s plan to defraud plaintiff ; states but one cause of action.
    
    In such a case it is not necessary to allege termination of the prosecution complained of as malicious. In this respect the action is for abuse of process.
    
    In the course of the charge, the judge told the jury that if a demand was made on defendant for the property, “ and he gave an evasive answer, or, instead of saying yes ’ or ‘ no,’ said, ‘ I demand back my own property, ’ that would be a conversion.....But if he told him he could go and get it, as defendant says he did, then it was not a conversion.” Held, not error, as on the whole charge it was apparent the question of defendant’s right to refuse to deliver, was fairly submitted to the jury.
    
    Appeal from a judgment upon a verdict of a jury-in favor of plaintiff, and from an order denying a iuotion for a new trial on minutes.
    George Bebinger sued Benjamin A. Sweet, and alleged by his complaint, that he was led into the execution of a hard contract, for the occupation and working of defendant’s farm, pledging certain personal property for the full performance of his agreement; that in pursuance of said contract, he entered upon said farm, and expended his money in the cultivation of the farm, and in putting in crops thereon ; that on or about July 3, thereafter, and after such crops had been put in, the defendant turned the plaintiff and his family off said farm, and refused to let him perform his contract as he was in good faith proceeding to do; that such conduct of the defendant was with the purpose of getting without compensation the avails of plaintiff’s labor and expenditures upon the farm; that in furtherance of said purpose the defendant procured the arrest of the plaintiff for embezzlement, maliciously, in bad faith, and without probable cause, with intent to drive plaintiff to an abandonment of his rights ; that in further pursuance of his wrongful acts, defendant took possession of the pledged property, and of other property belonging to the plaintiff, and has wrongfully refused to give the same up, after a demand ; that the plaintiff fully, and in all things performed his contract until he was prevented by the defendant; and, finally, that all this conduct and these acts on the part of the defendant, were the result of a deliberate plan on the part of the defendant to cheat and defraud the plaintiff, and were all parts of one and the same transaction.
    The defendant, by his answer, alleged that plaintiff broke his contract, and left his employ without his consent. The answer also, set up a counter-claim for property used by plaintiff; denied all fraud or design to cheat, and denied the wrongful taking or retaining of plaintiff’s property, or turning plaintiff off his premises.
    Plaintiff replied denying the counter-claim.
    Upon these pleadings, a trial was had, and plaintiff recovered $600.
    On the trial the court, against objection, admitted evidence that plaintiff was arrested and gave bail; that a lawyer, as defendant’s counsel, was present at the police court, andadvised plaintiff to settle, or defendant would send him to State prison. The substance of the charge on the question of conversion is stated in the head-note.
    Defendant moved unsuccessfully for a new trial, and appealed from the judgment and order.
    
      Mead & Burlingame, for defendants.
    I. Malicious prosecution was not alleged nor proved, and it was error to receive evidence of it. Moreover, there was no proof of the termination of the prosecution (2 Greenl. Ev. § 452 ; 1 Am. L. Cas. 221; Bigl. Lead. Cas. on Tort, 178-196; Driggs v. Burton, 44 Vt. 124 j M’Cor-mick v. Sisson, 7 Cow. 715; Gorton v. De Angelis, 6 Wend. 418; Bump v. Betts, 19 Wend. 421; Thomason v. De Mott, 18 How. Pr. 529 ; Clark v. Cleveland, 6 Hill, 344; Given v. Webb, 7 Robt. 65).
    
    
      'II. Demand and refusal do not constitute, but are simply evidence of a conversion (Hunger v. Hess, 28 Barb. 77; Hill y. Coveil, 1 H. Y. 522 ; Boyle v. Roche, 2 H. D. Smith, 336 ; Thomson v. Six-Penny Savings Bank, 5 Bosw. 294; Wells y. Kelsey, 38 Barb. 242 ; Watt v. Potter, 2 Mason, 80; 2 Creenl. Hv. § 644; N. Y. & H. R. R. Co. v. Haws, 56 H. Y. 178).
    
      Amasa J. Parker (Amasa J. Parker, Jr., attorney), for plaintiff.
    There is but one cause of action. The objection of supposed misjoinder should be by demurrer (Code, § 144), or motion (Cheney v. Fisk, 22 How. Pr. 236) before answer (N. Y. Ice Co. v. N. W. Ins. Co., 12 Abb. Pr. 74); and before notice for trial (Kellogg v. Baker, 15 Id. 287; and see 9 How. Pr. 123, 251). The omission to move is a consent to try the allegation (Quintard v. Newton, 5 Robt. 72 ; Smith v. Countryman, 30 N. Y. 655).
    
      
       Compare Pomeroy's Bemedies, 494; Hamlin v. Tucker, 72 N. C. 502; Keep v. Kaufman, 56 N. Y. 332 ; Grant v. McCarty, 38 Iowa, 468; Brockleman v. Brandt, 10 Abb. Pr. 141.
    
    
      
       See Moulton v. Beecher, p. 193 of this vol.; Heywood v. Collinge, 9 Ad. & E. 268; Tomlinson v. Warner, 9 Ohio, 103; Stancliff v. Palmeter, 18 Ind. 321; Dauchy v. Salisbury, 29 Conn. 124.
    
    
      
       Compare Roberts v. Berdell, 15 Abb. Pr. N. S. 177; Grillet v. Roberts, 57 N. Y. 28; Jessop v. Miller, 2 Abb. Ct. App. Dec. 449.
    
   By the Court.—Boardman, J.

An objection strenuously insisted upon by the defendant is, that several causes of action are improperly joined. It is sufficient to answer that the objection should have been taken by demurrer {Code, § 144, subd. 5; § 148). Inasmuch as it was not so taken, it was waived.

The cause of action is one and entire ; it is not an action for malicious prosecution, nor for breach of contract, nor for recovery of damages for the conversion of personal property. It sets forth these facts, as elements of damage, and also as evidence of the fraudulent plan and design of defendant, and means used by him for accomplishing his purpose of cheating and defrauding plaintiff out of Ms property, and rigMs. It was not, therefore, necessary to set out those facts with the same particularity as if relying solely upon them for a cause of action.

The action being such as I have indicated, it was not necessary to allege the prosecution had ended. It is essentially an action against the defendant for an abuse of the process of the law, in order illegally, and wrongfully, by that means, to compel plaintiff to surrender up his property and rights to the defendant. In such a case, it is unnecessary to allege or prove the termination of the prosecution. The action may be maintained without it (2 Greenl. Ev. § 452; Grainger v. Bill, 4 Bing. N. C. 212).

TMs renders it unnecessary to consider whether the prosecution was ended in fact, or any objection was made upon the trial, entitling the defendant to raise that question on appeal.

An exception is also taken to the charge of the judge upon the subject of conversion. A demand and refusal is undoubtedly only evidence of conversion. When, however, the judge says, a demand and neglect to return is a conversion, the meaning and intent is quite evident. A general exception to such charge, without pointing out or calling attention to critical inaccuracy, would not present an error to be here regarded.

• It is simply a catch and a qrnbble. It is not fair to the court; but in reading the whole charge it cannot be contended that the question of defendant’s right to refuse to deliver the property was not fairly submitted to the jury.

A demand was properly made; the defendant did not deliver it up. That was conclusive evidence of a conversión, if defendant had no right to retain it. Whether he had the right to retain it, was fairly submitted to the jury. The defendant has no just cause to complain of the manner of such submission. It was quite as favorable as defendant was entitled to; indeed, it might with great force be contended that the original taking was wrongful, and no demand necessary.

[The learned judge then disposed of some minor exceptions, and concluded:]—No error is discovered to the prejudice of the defendant for which, in our judgment, a new trial should be granted.

The judgment and order are therefore affirmed with costs. 
      
       Present—Learned, P. J., and Bockes and Boardman, JJ.
     