
    Samuel Rosenberg, Respondent, v. William Diele and John Diele, Composing the Firm of Diele & Company, Appellants.
    (Supreme Court, Appellate Term,
    January, 1909.)
    Bailment — Conversion by bailee—When not maintainable.
    Where the loss of plaintiff’s horse in control of defendants as ■bailees was .due to their omission to place the horse in a barn at night, as agreed, and the horse either escaped or was stolen, an action for conversion will not lie; and, in the absence of defendants’ consent to the determination of plaintiff’s claim upon a theory at variance with the pleadings, a recovery in plaintiff’s favor cannot be upheld.
    Appeal by the defendants from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of Few York, second district, borough of Manhattan.
    Chilton & Goldstein, for appellants.
    Leopold W. Harburger, for respondent.
   Bischoff, J.

Taking the evidence in the view most favorable to the plaintiff, the loss of his horse, when in the control of the defendants as bailees, was due to the latters’ omission to place the animal in a barn at night as they had agreed, with the result that it escaped or was stolen from the pasture. Under such circumstances an action of conversion will not lie. The element of an exercise of dominion over the property, to the exclusion of the true owner, is lacking, and a deviation from the contract of bailment only in the form of a negligent omission — as distinguished from an affirmative act indicating the bailee’s wrongful assumption of control — is not a conversion. Walmsley v. Atlas SS. Co., 168 N. Y. 533; Laverty v. Snethen, 68 id. 522. There having been no consent upon the appellants’ part to the determination of the plaintiff’s claim upon a theory at variance with the pleadings, the recovery cannot be upheld.

Gildersleeve and Guy. JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  