
    Almira Rowland, Resp't, v. Daniel Sprowls, App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    Conversion—Pleading.
    Upon appeal from a verdict for plaintiff in an action by a mortgagee to recover damages for injury to liis security, defendant contended that as proof was given that a bond accompani d the mortgage, and plaintiff having failed to allege in his complaint the insolvency of the mortgagor, he could not recover. Held, that as the course of the trial was the same-as if the complaint" had contained the needed allegation, proof of such insolvency having been given without objection, the defendant was neither misled nor prejudiced by the omission, and the verdict should be sustained.
    Appeal from an order of the special term, Monroe county, denying the defendant’s motion for a new trial upon a case and exceptions.
    
      M. G. Sunderlin, for app’lt;
    
      M. A. Leary, for resp’t.
   Lewis, J.

It is difficult to determine whether the cause of action stated in the complaint is in trover for the conversion of the property which the defendant detached from the saw mill building and removed from the premises covered by the plaintiff's mortgage, or whether it is for an injury to the plaintiff’s mortgage security.

The course of the trial and especially the charge to the jury would indicate that the action was for conversion.

The only claim the plaintiff had upon the property at the time it was removed arose out of the lien of her mortgage upon the premises, on which the saw mill with its fixtures was situated.

The fixtures were detached and removed prior to the foreclosure of the mortgage, in fact before it fell due. The plaintiff, therefore, had no such title to the fixtures as entitled her to maintain an action for their conversion. Buckout v. Swift. 27 Cal., 433; Hill v. Gwin, 51 id., 47; Hamilton v. Austin, 36 Hun, 143.

This point is not raised by the appellant’s counsel; their contention is that the action is to recover damages for an injury to plaintiff’s security; they contend that there is proof that a bond accomponied the mortgage and that the plaintiff’s complaint failed to allege the insolvency of the mortgagor, and that such allegation is indispensible to the plaintiff’s right to recover.

No bond was produced at the trial. The only proof there was of the existence of a bond was the following recital in the mortgage : “ According to the conditions of a bond this day executed and delivered by the party of the first part to the said party of the second part”

If we assume that this recital was evidence in this action between these parties that a bond was given, the evidence which was admitted without objection abundantly established the insolvency of the mortgagor.

The complaint could have been amended by the trial court, if an amendment was necessary, for it would not in any respect have changed the nature of the action. It is not necessary that the case be sent back for the purpose of amending the complaint; that may be done by the appellate court

The course of the trial was the same as if the complaint had •contained the needed allegation, so that the defendant was neither misled nor prejudiced by the omission.

The case of the plaintiff, Mrs. Rowland v. Sworts, decided by this court in January, 1892, 43 St. Rep. 951, involved similar questions to those presented by this appeal. Mrs. Rowland there sued to recover damages for the removal of the saw mill building from the same premises covered by her mortgage. The pleadings in that action were like the pleadings here. She had a verdict, which upon appeal was sustained by this court

The order appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.  