
    Thomas H. Thorn et al., App’lts, v. James Sutherland et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    Action—Against owner oe equity eor conversion when premises nr POSSESSION OE MORTGAGEE.
    Where a mortagee is in possession of premises, and it has been judicially determined in a proceeding to dispossess the plaintiff that the mortgagee was the landlord, of. the plaintiffs and entitled to the possession of the premises as against them: Held, that the owner of the equity of redemption as such, is not liable in an action for the conversion of personal property left upon the premises.
    Appeal from judgment entered upon the dismissal of the complaint at circuit.
    
      W. A. Goursen, for app’lts; S. P. Brownell, for resp’ts. -
   Van Brunt, P. J.

An examination of the opinion -delivered upon the previous appeal seems to us all the questions involved in this appeal.

It was distinctly held, under the facts as they then appeared, and in these respects upon the new trial no change has been made, that no cause of action was made out against the defendant Sutherland, but a new trial was ordered because of the error in excluding certain evidence which the court thought might tend to show that Mr. Speir was acting as the agent of Mrs. Payne.

In making this decision it would seem that the court had overlooked the fact that Mrs. Payne was not a defendant in the- action, and that it was entirely immaterial whether Mr. Speir had authority to act for Mrs. Payne or not.

It seems to be urged upon this appeal that because Mr. Sutherland is claimed to have had an equity of redemption in this property, that therefore he is liable. It appears, however, from the evidence that Mr. Payne, and after his death Mrs. Payne, were at least mortgagees in possession, and it has been judicially determined by the dispossession proceedings as between these plaintiffs and Mrs. Payne that Mrs. Payne was their landlord, and entitled to the possession of these premises as against them. Nemetty v. Naylor, 100 N. Y., 562. And the surrender of the premises appears to have been to Mrs. Payne and not to the defendant Sutherland.

Upon the previous appeal it was held that whatever promises Sutherland made were entirely ineffectual to sustain this action, because the promise testified to was made at or about the time of the execution of the lease, and undoubtedly referred to the taking away of the property which the plaintiffs might place upon the premises during the lease; and the further promise which seems to have been imported into this case appears to have been made after the surrender of possession and not as an inducement to surrender possession, and therefore was entirely without consideration, and even if it had been made would not form the foundation for the action in question.

There seems, therefore, to be no basis upon which the action could be maintained against the defendant Sutherland; and as to whether Mr. Speir had authority to act for Mrs. Payne is entirely immaterial, as Mrs. Payne is not a party defendant in this action.

The judgment should therefore be affirmed, with costs.

Bartlett and Daniels, JJ., concur.  