
    Henry M. Barrowcliffe, Adm’r, Resp’t, v. Henry Cummins et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 18, 1892.)
    
    Tenants in common—Conversion—Replevin.
    Defendant 0. borrowed certain stock of one H. for the purpose of raising money thereon and pledged the same, and afterwards purchased of H. a half interest therein. H. sold the other half to plaintiff's intestate. Held, that the hypothecation and failure to redeem did not constitute a conversion, but at most was a breach of contract, and that defendant having become a tenant in common of the slack, replevin would not lie against him.
    Appeal from judgment in favor of plaintiff, entered upon verdict in action of replevin.
    
      John Cummins {J. W. Lawton, of counsel), for app’lts; J. M. Hunt, for resp’t.
   Van Brunt, P. J.

This action was brought to recover possession of 700 shares of Electro Graphic Manufacturing Company stock borrowed by the defendant Cummins from one C. B. Hall, and also for the recovery of certain bonds and stock of the Postal Telegraph Company declared as dividends .upon Electro Graphic stock. It appeared that the said Electro Graphic Manufacturing Company stock, together with a large quantity of other stock, bad been borrowed by Cummins from one C. B. Hall, for the purpose of raising money thereon, and said stock was pledged therefor within a few days after its loan, from which pledge the shares have never been redeemed by either Cummins or Hall. The dividend in question was declared in September, 1883, and it is claimed that the stock had been sold under the pledge long before. It further appeared that in September, 1883, the defendant Cummins purchased from Hall an undivided half interest in and to all the interest Hall then had in the Electro Graphic stock theretofore borrowed-by Cummins from Hall, and that on the same day Cummins transferred to the defendant Roberts said one-half interest.

In May, 1884, Hall transferred to the plaintiff’s testator all his right and interest in said stock and demand having been made upon Cummins for the delivery of the stock, and refused upon the ground that the stock had been parted with, this action was commenced in replevin. Upon the trial the jury having rendered a verdict in favor of the plaintiff, from the judgment thereupon entered this appeal is taken. As the judgment only is appealed from, only exceptions are brought up for consideration ; and in the disposition of this appeal it is not at all necessary to reler to the many intricate facts which are indistinctly shadowed forth by the evidence which was produced upon the trial; and we need do no more than consider one exception *which was taken to the refusal of -the court to charge, although many other points against the maintenance of the action might be suggested. The court was asked to charge that if the jury believed that, under the assignment, Cummins became possessed of an undivided half interest in any of the stock, inclusive of the 7,800 shares, which included the 700 shares, then he became the tenant in common with Hall, and no action of replevin could be brought against Cummins or Boberts. The court refused so to do, and left the jury to find that a co-owner of a chattel may maintain replevin against his cotenant. It hardly needs argument to show that such a position cannot be true. It is only where there has been an exclusive right in denial of the title that such an action can be maintained ; and such might have been the case at bar if the hypothecation of these stocks by Cummins had amounted to a conversion thereof. But, under the circumstances developed upon the trial, Cummins was not guilty of conversion by such hypothecation. The case conclusively shows that the stocks were borrowed for the purpose of raising money upon them; and when he hypothecated them, for the purpose of raising such money, he did not convert them ; and when he did not return them because he had so hypothecated them, and could not redeem the pledge, it was simply a breach of contract, and not a conversion of the stock. There was no assertion of a claim hostile to any that Hall might have, and which he had not parted with, but simply a failure to comply with his contract to return. This would form no basis for a possessory action of one cotenant against another. It was error, therefore, upon the part of the court, to refuse to charge that, if the jury believed that under the assignment the defendant became possessed of an undivided half interest in the stock in question, he then became a tenant in common with Hall therein, and no action in replevin could be brought against Cummins or Boberts. ■ This error was fundamental, and goes to the root of the whole action ; and none of the transactions had between Hall and the plaintiff, as representing the testator, in any way affected his status in this regard. It seems to be assumed, upon the part of the plaintiff, that, because Cummins failed to return the stock pursuant to his contract, therefore he had become liable in tort therefor. On the contrary, the only penalty which he had incurred was for damages for the breach of contract. The judgment must be reversed, aud a new trial ordered, with costs to appellant to abide the event.

O’Brien and Lawrence, JJ., concur.  