
    Irving Snell, Resp’t, v. Robert R. Thorp, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 7, 1891.)
    
    Conversion—Title.
    One W. cut a quantity of last blocks upon lands of C., a portion of which were delivered at the railroad station. Thereafter plaintiff entered into a written agreement with C., by which 0. was to bring the remainder and load all on the cars, for which service plaintiff was to pay fifty dollars down and seventy dollars when the goods were loaded. The fifty dollars was paid. Defendant levied an attachment on the blocks which were at the station. Held, that the agreement was not executory, and that plaintiff had sufficient title and possession to maintain an action of trespass for such taking.
    Appeal from a judgment of the county court of Oneida county, entered J une 15, 1888. The case was tried before the court and a jury, and at the close of the evidence the court directed a verdict for plaintiff for six cents damages. An appeal is also taken from an order denying a motion on the minutes for a new trial.
    A former appeal appears in 16 N. Y. State Rep., 84.
    
      A. L. Hayes and Walter Ballou, for app’lt; De Angelis & Doolittle, for resp’t.
   Merwin, J.

—Upon the undisputed evidence the plaintiff was entitled to recover nominal damages, provided he had such title or possession as enabled him to maintain the action. The levy under defendant’s attachment, and which was the occasion of the alleged trespass, was October 15, 1884, and ceased on November 7, 1884.

In the winter previous, Joseph YTilliams, under some arrangement with Byron Cool that the evidence does not disclose, cut upon the lands of Cool about 5.566 last blocks. Of these about 1,500 were, during the same winter, delivered at the Alder Creek station of the Black Eiver Eailroad by the defendant and one Joyce. The rest remained in the woods of Cool. On the 22d of September, 1884, the plaintiff met Cool at the station above named, and, as Cool and plaintiff both in substance testify, the former upon the examination of defendant, plaintiff, after, some negotiation, offered Cool $120 for the blocks, and Cool accepted the offer and agreed to bring the remainder to the cars, and to load them all on the cars whenever plaintiff requested it. At the close of the negotiation a memorandum was made and signed by Cool, by which he “ agrees to deliver and load on the cars at Alder Creelc station thirty-five hundred last blocks, which are now in the woods on his land, and also what blocks are now at the railroad, being the same blocks cut by Joseph S. Williams last winter. For which service said Snell is to pay said Cool the sum of one hundred twenty dollars, as follows: fifty dollars down, and the balance when done.” The fifty dollars was paid down. The balance of the blocks were drawn by Cool to the station prior to the 15th of October. The levy was designed to be on the 1,500 blocks that had been previously drawn.

The claim of the defendant is that the agreement between Cool and plaintiff was executory and that no title or right of possession passed until payment. The balance was not paid Cool until after the levy. William's seems to have had some interest in the property which apparently the plaintiff had previously purchased. No point is made by the defendant about that. The writing signed by Cool seems to rebut the idea that the transfer of the title was conditioned upon the payment of the balance. The matter is treated, not as a purchase, but as a performance by Cool of work and service for the plaintiff. There is no evidence of a design to make the transfer of title conditional upon the payment. This would especially be the case as to the 1,500 blocks which at the time were in the custody of the railroad company. As to these, Cool had nothing to do except to load them on to the cars whenever required by plaintiff.

We think the undisputed evidence showed a sufficient title and possession, as to the 1,500 at least, to enable the plaintiff to maintain trespass.

It follows the judgment must be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J., concur.  