
    Morris Sophian, Appellant, v. Michael Henig, Respondent.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan.
    Sigmund Horkimer, for appellant.
    David W. Rockmore, for respondent.
   McAdam, P. J.

The defendant, a livery-stable keeper, was sued in trover by the plaintiff for the conversion of a horse, harness, etc., of the value of $155.

It appears that the property was brought to the defendant’s stable by City Marshal Gross, who had taken possession of it to foreclose a chattel mortgage thereon.

The city marshal subsequently called in Simon Wand, an auctioneer, who advertised and sold the property at public auction, in lots, to different people who took the property away.

It does not appear that the defendant ever asserted or exercised any dominion over the property, or that he had anything whatever to do with it except to permit the city marshal to leave it temporarily in his stable.

The defendant took no part in bringing the property to his stable, nor in sending it therefrom; took no part in the sale, and interfered in no manner with the property or its control. It is difficult to imagine any ground upon which to hold the defendant guilty of conversion, which implies some tortious act, unless it be that the defendant refused to deliver the property to the plaintiff on demand made by him therefor. The answer to this, however, is that the defendant testifies that he never saw the plaintiff until after the purchasers at the sale by the auctioneer had removed the property from his stable, and all power on his part to deliver over the property had ended. The justice, having found for the defendant, we must assume that he credited his evidence that mo demand for the property was made upon him by the plaintiff.

The suit previously brought by the plaintiff, and referred to in the return, was in replevin against John Doe, and it can hardly be seriously claimed that anything done in that suit (which was dismissed) created or gave rise to any right of action herein against the defendant.

The case was properly disposed of, and the judgment must be affirmed, with costs.

MacLean and Scott, JJ., concur.

Judgment affirmed, with costs.  