
    Frederick Zimmer, App’lt, v. George Bantel et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    
    1. Judgment—Against " defendant ” in action against several.
    A judgment against “the defendant” in an action against more than one, without specifying either or dismissing the complaint against the others, cannot stand as a judgment against either of the defendants.
    2. Conversion—Evidence insufficient to warrant judgment.
    Plaintiff gave evidence of a conversation with one of the defendants in which the latter said that he had the horse in question and had sold him or the boys had and of a demand of said defendant who said it had been traded long ago. There was no proof as to the relationship between the defendants, or as to who "the boys” were. Held, that the evidence was insufficient to warrant a judgment against all or either of the defendants.
    3. Same.
    Where the property was not in the possession or under the control of the defendant at the time, evidence of demand and refusal, merely, does not establish a wrongful conversion.
    
      Appeal from a judgment of the county court of Monroe county, reversing a judgment of a justice’s court.
    
      H. J. Sullivan, for app’lt; P. Chamberlain, for resp’ts.
   Dwight, J.

The action was for the conversion of a horse. Three defendants, George Bantel, George B. Bantel and Joseph. Bantel, were named in the summons and served, as such, in the action. The plaintiff by his complaint claimed title to the property under a chattel mortgage executed to.him by one "Weyle. The complaint also alleged that the defendant wrongfully took and converted the property and refused to deliver the same on demand. There was no allegation of copartnership between the defendants nor of any other fact which would render either or any of the defendants liable for the acts of any other. The judgment was against the defendant without specifying either of them, or dismissing the complaint as to the others. Of course the judgment could not stand as a judgment against either one of the defendants.

But we shall assume, as the plaintiff contends, that the word “ defendant ” in both the complaint and the judgment as returned by the justice was written for “ defendants,” and that the clerical error might have been disregarded on the appeal to the county court. In that case we find that the judgment was properly reversed because there was a lack of evidence to support it as against the three defendants, and their motion for a nonsuit should have been granted.

Aside from the question whether the plaintiff had established his title to, and right of possession of, the property, there was no evidence whatever to charge the three defendants with its conversion. The two defendants, George B. and Joseph Bantel, are not mentioned in' the evidence either by name or by any description which identifies them, or either of them, with the person or persons spoken of. There were only two witnesses sworn for the plaintiff, himself and his agent, Gaffin; and the defendants gave no evidence. The plaintiff testified to conversations with George Bantel only; that George Bantel told him “ that he had the horse and had sold him, or his boys had,” and at another time “that the boys had traded the horse off.” Who “the boys” were there is nothing to explain, nor in what relation the other two defendants stood to George Bantel. Gafiin testified first to a conversation with “the son and partner” of George Bantel, but does not identify that person with either of the defendants. He testified that he afterwards saw the defendant, George Bantel, and demanded the horse for the plaintiff; that the defendant said the horse belonged to him, and refused to deliver it, saying that it had been “sold or traded long ago.” This is all the evidence given on the subject of a conversion. It was manifestly insufficient to warrant a judgment against all .or .either of the defendants. There was no evidence of an actual conversion of the property by either, much less by all the defendants; and no evidence that the property was demanded of either of the defendants, except George Bantel, and that at a time when, so far as the evidence shows, it was not in his possession or under his control. Under such circumstances evidence of demand and refusal, merely, does not establish a wrongful conversion of the property. Andrews v. Shattuck, 32 Barb., 396; Gillet v. Roberts, 57 N. Y., 28.

The motion for a nonsuit, on the ground that the plaintiff had failed to make out a cause of action, should have been granted as to all the defendants, and the judgment of the county court reversing that of the justice must be affirmed.

Judgment of county court affirmed, with costs.

Barker, P. J., and Macomber, J., concur.  