
    Nicholas Hammond and Elmer E. Hammond, Respondents, v. James Sullivan and Others, Appellants.
    Third Department,
    May 2, 1906.
    . Conversion—forcible asportation of goods ■ without claiming title or doing injury is not conversion, but trespass — owner cannpt recover full Value. ■ ■ ■. ‘ . /
    The superintendent of a religious shrine, who forcibly takes and removes the' goods of one operating a refreshment 'booth under a license from the landowner, opposite the entrance to the shrine, although a trespasser and liable to punitive damages, cannot be charged in an action for conversion with the full . value of the goods, when he made no claimof title and did not destroy the .goods or alter their nature, but merely transported' them beyond the boundaries of the shrine.
    Under such circumstances, when the owner, has full freedom to 'retake the- goods, "he cannot abandon them and recover the full value from the trespasser.
    
      Appeal by the defendants, James Sullivan and others, from a judgment of the County Court of Montgomery county in favor of the plaintiffs, entered in the office of the clerk of the county of Montgomery on the 24th day of August, 1905, upon the decision of the court.
    This action was brought by plaintiffs to recover against the defendants for the conversion of certain personal property unlawfully- taken from their possession by defendants. The plaintiffs on the morning of August 21, 1904, had, with the permission of the owner of the land and of the commissioner of highways, erected a small tent in the highway opposite the lands of “ The Shrine of Our Lady of Martyrs at Auriesville,” a place of religious worship in the town of Glen, in the county of Montgomery. Such tent was used by the plaintiffs for the sale of refreshments, and was located opposite the gateway or entrance to said shrine. Plaintiffs had on prior occasions used such spot for the same purpose. At about, eight o’clock on the morning of said twenty-first day of August the defendant Sullivan, who was the superintendent of such shrine and had charge thereof, requested the plaintiffs .to remove from such place, and - notified them that unless they so removed within one hour he would forcibly- remove tlieir property therefrom, claiming to have permission to do so from the owner-of the land upon which the tent stood. At the expiration of the hour, the plaintiffs still refusing to remove therefrom, the defendant Sullivan, assisted by the defendants Glen and Fitzpatrick, proceeded to take down the tent of the plaintiffs, and carried it and plaintiffs’ wagon and other chattels 200 to 600 feet from this spot, and beyond the lands of the shrine, and there deposited them' in the highway. The plaintiffs did not follow up their property and retake it,- except that they went and took one bag of feed. The defendants never exercised any further acts of ownership over the property, and neither have the plaintiffs done so.
    The plaintiffs brought this action in Justice’s Court, .and recovered judgment against defendants. An appeal was taken by defendants from such judgment, and a new trial was had in the County Court before the county judge, a jury having been waived.' The county judge rendered á decision in favor of the plaintiffs for the full value of the property so taken by the defendants, and from the judgment entered thereon this appeal is taken.
    
      
      Joseph H. Far gis, for the appellants.
    
      Robert J. /Sanson, for the respondents.
   Parker, P. J.:

An examination of the evidence in this case shows beyond controversy that -when the defendants moved the plaintiffs’. goods in' question from the place in the highway opposite the- property of, which they had charge, to another place where they left it, they made no claim of ownership over the property nor , right to take.-, .and use the same. It is apparent that the only right they claimed was the right to prevent the plaintiffs from setting up their tent, in. that particular spot opposite the lands and gateway of the- shrine,, and they claimed the right to remove such property from that spot solely through the permission from the owner of the land on which it was then located, and they claimed no more. And' it is-equally* clear that after they had deposited the property in the highway, beyond the boundaries of the shri'ne’s property, they no longer interfered with it, or made any effort to do so. From the time, that it was set down there by the defendants nothing prevented the plaintiffs from taking immediate possession of it.- They were prae- - tically assured by the defendants that the only interference which-, they had to apprehend from them was the prevention of their use - of this property, in the spot in the highway where the- plaintiffs insisted upon using it. In my judgment such, an interference with the property, although it was beyond doubt an asportation of the : goods, was not "a conversion. Such asportation was not done with: any intent to assert any right in the chattels, or to- deny any title . of the owner, nor did it have the effect of destroying the chattels - or altering their nature. It was not, therefore, a conversion-of them, so that the plaintiffs had the right to abandon them entirely to the defendants, to refuse to take them back had the defendants, offered to return them and enable the plaintiffs to treat them as having been purchased by the defendants from the plaintiffs.; (28 Am. & Eng. Ency. of Law [2d ed.], 692; People v. Bank of North America, 75 N. Y. 547, 564; O. J. Gude Co. v. Farley, 25 Misc. Rep. 502, and cases cited.)

The trial court found, as a matter of law, that the -acts■-of • the. defendants constituted-:an: unlawful conversion, of - the- plaintiffs!. property, and he rendered a judgment against the defendants for the full value thereof. If such conclusion was an error, the judgment is necessarily wrong and must be reversed. It is true that from the,facts found in the decision of the court such conclusion would apparently be correct; but, upon the whole evidence in the case, other facts appear which show the situation to have been as above stated, and the defendants duly requested the court to include such facts in its decision. We must, therefore, consider such additional facts in determining this case. \

There can be no doubt, I think, but that the conduct of the defendants-was. an unmitigated trespass for which they are liable to the extent‘of the injuries actually done to the plaintiffs’ property, and to such a sum by way of punitive damages for the unwarranted action of the defendants*as a jury might think the case required. But that there was a conversion of the property by the defendants to their own use to such an extent that they became liable to the plaintiffs for the full value of it, I cannot agree.

In my opinion the judgment should be reversed and. a new trial granted, with costs to the appellants to abide the result.

All concurred.

I

Judgment reversed on law and facts and new trial granted, with costs to appellants to abide event.  