
    (88 Hun, 54.)
    CUSHMAN v. OOTHOUT.
    (Supreme Court, General Term, Fifth Department.
    June 21, 1895.)
    Trover and Conversion—What Constitutes Convehsion.
    Refusal of the janitor of defendant’s building to deliver to plaintiff goods left by her in the building is not a conversion by defendant, where it appears that the janitor did not have the key to the rooms in which the furniture was, and had never been intrusted with the control or keeping thereof.
    Appeal from Monroe county court.
    Action by Sarah J. Cushman against Samuel N. Oothout for conversion of household goods. The action was originally brought in the municipal court of the city of Rochester, where the plaintiff recovered a verdict. It was retried in the county court, where defendant recovered a verdict. From a judgment rendered on such verdict, plaintiff appeals.
    Affirmed.
    Argued before LEWIS, BRADLEY, WARD, and WERNER, JJ.
    Hyland R. Wood, for appellant.
    James S. Havens, for respondent.
   LEWIS, J.

The household goods in controversy were placed in an apartment house belonging to the defendant, by a Mr. Cook, a tenant of the defendant. Cook thereafter, and while the furniture was in said house, gave a chattel mortgage thereon to the plaintiff, as security for her indorsement of his promissory notes. Plaintiff got title to the property mortgaged by the default of the mortgagor in paying such notes. The plaintiff sued for a conversion of the mortgaged property. Her claim is that she demanded of the defendant the possession of the property, and that he refused to deliver it. Whether a demand was ever in fact made upon the defendant for the possession of the goods was a controverted question upon the trial. The plaintiff gave evidence tending to show that a demand was made upon the defendant personally, and that a demand was also made upon the janitor of the defendant’s apartment house, a Mr. Hagadorn, and that there was a refusal to deliver in both cases. The defendant testified that no demand was ever made upon him, but that, on the contrary, when the mortgagor, Cook, left the rooms in which the property was, he called upon the plaintiff and requested her to remove the furniture from bis building, as he wished to lease the rooms to another tenant. The plaintiff gave evidence tending to show that in the spring of 1893 she demanded possession of the property of Hagadorn, the janitor, whom she found upon St. Paul street, in the city of Rochester. That Hagadorn refused to let her have the goods unless she paid a bill for storing them, and also paid rent due for the rooms in which the goods had been stored.

The property, at the time of the alleged demand, was in defendant’s building, on Monroe avenue, in another part of the city, and there was evidence tending to show that the janitor did not, at the time of the alleged demand, have the key to the rooms in which the furniture was at the time stored. Hagadorn was shown to have been employed, at the time of the alleged demand and refusal, in the capacity of a janitor, simply. He had never been intrusted with the control or keeping of the goods. He testified that he had never been instructed by the defendant not to deliver the goods to the plaintiff. Assuming that the demand was made upon the janitor, as sworn to by the plaintiff’s witnesses, we do not think his refusal to deliver possession constituted a conversion by the defendant. Goodwin v. Wertheimer, 99 N. Y. 149, 1 N. E. 404. We agree with the trial court that there was not sufficient evidence to establish a cause of action based upon the alleged transaction with the janitor on St. Paul street

Defendant gave evidence tending to show that intermediate the times of the demands, as testified to by the plaintiff’s witnesses, and the commencement of the action, he informed the plaintiff that he made no claim upon the goods, and that he wished her to remove them from his building, and that the plaintiff neglected so to do, and allowed the goods to remain in the defendant’s building for a long time thereafter, before commencing her action.

We fail to find any reason for disturbing the verdict. The judgment and order appealed from should be affirmed. All concur.  