
    (74 Hun, 28.)
    CAYWOOD v. VAN NESS.
    (Supreme Court, General Term, Second Department.
    December 1, 1893.)
    Conversion—What Constitutes.
    One who, after assigning a bond and mortgage, obtains possession of and assigns them to another person, before the first assignment is recorded, is guilty of a conversion.
    Appeal from circuit court, Kings county.
    Action by James C. Caywood, as guardian of Ellen M. Caywood and Maiy M. Caywood, infants, against John K. Van Ness, for the al•leged conversion of a bond and mortgage belonging to plaintiff’s wards. There was a judgment entered on a verdict in favor of tiff for $2,706.66, and defendant appeals.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Robt. Payne, for appellant.
    William G. Cooke, for respondent.
   BARNARD, P. J.

David G. Caywood was appointed by the surrogate of Kings county guardian of his two infant daughters, Ellen M. Caywood and Mary M. Caywood. He died in February, 1890, and there was found among his papers an assignment of a bond and mortgage executed by the defendant to David G. Caywood, guardian. No bond and mortgage were found. The plaintiff was properly appointed guardian of the children, and he brings this action to recover for a conversion of the bond and mortgage by the defendant. It was proven that in April, 1889, the defendant assigned the bond and mortgage to Reuben R. Finch, and that the previous assignment to the plaintiff’s predecessor as guardian was not recorded. These facts presumptively made out a cause of action. The written paper passed the title to the bond and mortgage, and the subsequent sale of the securities by' the defendant established a conversion of the same. Fulton v. Fulton, 48 Barb. 581. The proof, also, supports the verdict of the jury. It was proven that, when the defendant’s attention was called to the fact of the assignment being found among the decéased guardian’s papers, he suggested that possibly the guardian may have assigned the paper to raise money on. He had then again assigned the papers himself. The ■defendant, in April, 1889, admitted that he had $2,000 of Caywood’s money, (the deceased guardian,) and he spoke of it as a fund. This was about the very date of the second assignment made by Van Ness. The proof shows that the fund belonging to the children was about the sum of $2,083.33. The defendant received over $3,000 on the second sale of the mortgage. The defense consisted of evidence tending to show a settlement with the deceased guardian just before the second assignment. The credibility of the witnesses was ■a question for the jury, and their finding, based upon a refusal to credit this settlement, is fully sustained by the whole body of the •evidence. The judgment should be affirmed, with costs.

DYKMAN, J., concurs.

PRATT, J.,

(concurring.) This is an appeal from a judgment entered upon a verdict of a jury. The evidence is necessarily meager, from the peculiar circumstances of the case, but we think it is sufficient to sustain the verdict. The great point made by the defense is that there is not sufficient evidence of conversion to warrant the finding of the jury. It seems to me this contention cannot be readily sustained. The assignment by Van Ness to Caywood, the general guardian, vested the title of the bond and mortgage in him, ■and it was immaterial whether it was delivered to him at the time or not,” although, a witness for the defendant testified that he saw it delivered at that time. By some means, which do not clearly appear, Van Ness regained possession of the bond and mortgage, and' assigned them to another party. Such assignment was a conversion, unless Van Ness was rightfully the owner of the bond and mortgage at that time, and the jury has found that he was not such rightful owner. This result was partly reached through the admissions and statements of the defendant himself. The defendant well knew that he was dealing with a guardian, and his misfortune is that the jury did not believe his witness, who testified to a settlement with the guardian. The whole transaction, as far as possible-to obtain evidence of it, was before the jury, and, considering the various statements as testified to by plaintiff’s witnesses, we cannot say the verdict was erroneous in any respect. We have examined the exceptions taken upon the trial, and find no error sufficient, to warrant the granting of a new trial. Affirmed, with costs.  