
    Merrick Price, Plaintiff, v. William S. Murray, Defendant.
    In an action for damages for converting plaintiff’s personal property and ejecting him from his store, it appeared that the plaintiff made a general assignment for the benefit of his creditors to the defendant, who was his landlord, and that some time after the assignment, the plaintiff having meanwhile continued in possession, the defendant excluded him from the premises and took possession of all the goods there, claiming that they all passed under the assignment. The plaintiff testified that a part of the goods so withheld from him, he had acquired subsequent to the assignment, and that at the time of the eviction he was doing a profitable business.
    
      Held, upon the evidence in this case:
    1st That it was error to nonsuit the plaintiff as to his claim for conversion of the property which he alleged that he had acquired subsequent to the assignment.
    2d. That the eviction was not a case for vindictive damages, the defendant appearing to have acted in good faith.
    3d. That the plaintiff was entitled to recover his actual damage for the breaking up of his business, and that a verdict for nominal damages should be set aside.
    (Before Bosworth, Ch. J., and Moncrief and Robertson, J. J.)
    Heard, February 6, 1863;
    decided, February 28, 1863.
    The exceptions taken on the trial of this cause were directed to be heard, in the first instance, at the General Term, the judgment to be in the meanwhile suspended.
    The complaint, in this action, stated two causes of action: first, for the wrongful conversion, by the defendant, on the 20th of May, 1861, of certain personal property ; and, second, for evicting the plaintiff, on that day, from premises which he had leased from the defendant, being a part of the store Ho. 22 John street, in the City of Hew York, and, by such eviction, breaking up the plaintiff’s business. The answer denied the allegations of the complaint, and, further, alleged that the plaintiff, on the 14th of February, 1861, had made a general assignment of his property (including the property converted) to the defendant, for the benefit of his creditors.
    The action was tried on the first day of December, 1862, before Mr. Justice Moptell, and a Jury.
    The plaintiff proved, by his own testimony, and that of witnesses, Stevens and Eobbins, that, in May, 1861, he was engaged, at Ho. 22 John street, in the business of applying independent seconds to ordinary watches, and also in the sale of hardware, guns, etc., on commission; and that he occupied, for that business, a portion of the store; that he rented the same of the defendant, at $300 a year; that he had in the store a large number of articles, of the total value of $2,161; that the defendant, between the 20th and 29th of May, 1861, by force, evicted and entirely dispossessed him of the premises; took possession of all the property there, and broke up his business. The plaintiff was thus thrown out of employment, and was out of employment for six months. He testified that his receipts, in the business, had been about $120 a week and his expenses about $24, and that he had more business than he could do.
    
      The plaintiff testified that a portion of the property in the store he had acquired after the assignment. Of this the total value was $359, $75 thereof being the absolute property of the plaintiff, and the residue he held as consignee. The Justice dismissed the complaint, so far as it related to the cause of action for conversion of property, and the plaintiff excepted.
    The defendant was then sworn as a witness, on his own behalf, and testified that he excluded the plaintiff from his store because he was annoyed by him there after the assignment, and that plaintiff went for a policeman. “I stated to the policeman that he did not belong there; that I was assignee, and held the property, whatever there was, and I then and there stated he could not come in; neither could the officer.”
    Q. You never knew that Mr. Price purchased any property after the assignment there?
    A. Never, so far as I know. All his story about having other property is entirely untrue; it is entirely new to me.
    The Justice then charged the Jury that they could not give the plaintiff vindictive damages for the trespass and eviction complained of, and that the plaintiff had not shown any actual damages, and to this the plaintiff excepted.
    The Jury rendered a verdict for the plaintiff for six cents.
    
      Thomas Stevenson, for plaintiff, appellant.
    I. Plaintiff had such an interest in the property consigned to him, subsequent to the assignment, as to enable him to sue. for the conversion. (Smith v. James, 7 Cow. 328.)
    II. Plaintiff was entitled to recover for the conversion of the $75 worth of property of his own, acquired by him subsequent to the assignment.
    III. No demand was necessary of either the assigned property or the property subsequently acquired, because defendant- did not come lawfully into possession. A conversion of those articles was established. (See Anderson v. Nicholas, 5 Bosw., p. 121, and cases there referred to in first point of Mr. Prentiss; Connah v. Hale, 23 Wend., 462; Phillips v. Hall, 8 Wend., 610, and cases there cited.)
    IV. The Justice erred in charging that the Jury could not give vindictive damages.
    In actions of trespass plaintiff may recover vindictive damages, and the Jury are not limited to the actual loss or pecuniary damage. (See Grah. & W. on New Trials, 434 to 439, and cases there cited; also Sedgw. on the Meas. of Dam., 39-42, 88.)
    Y. Plaintiff was entitled to recover for loss of custom or business. (Sedgw. on Dam., 65.)
    
      Cyrus Lawton, for defendant, respondent.
    I. The Justice was correct in excluding evidence to show a conversion of property which came into possession of plaintiff after the assignment, because no demand was averred or proved.
    II. Defendant did not take and carry away the property wrongfully, or take forcible possession of the same; but it all came to him by virtue of the assignment, and he was in lawful possession thereof as assignee.
    III. If there was any property other than that assigned, a demand was necessary, to maintain this action.
    IY. Where a person is in peaceable and lawful possession, a demand is necessary before suit. (Howell v. Kroose, 2 Abbotts’ Pr., 167.)
    Y. There can be no doubt but what the plaintiff’s interest in the lease ceased with the assignment, for thereby he assigned and transferred all his lands, and all goods and chattels, documents and vouchers belonging to his dealings or property, and, as a matter of law, the lease passed under the assignment.
    YI. The Judge’s charge was correct.
   By the Court—Bosworth, Ch. J;

This action is brought to recover damages, for forcibly and unlawfully evicting the plaintiff from 22 John street, and for taking plaintiff’s personal property, which was therein,'and converting it to the defendant’s use. The answer, first, denies all the allegations of the complaint, and, second, avers that, on the 14th of February, 1861, the plaintiff assigned to the defendant “ all his said plaintiff’s property mentioned in said complaint or otherwise.”

The Jury have found that the defendant rented the premises in question to the plaintiff, for one year, from May 1, 1861, and subsequently dispossessed him unlawfully.

The plaintiff testified on the trial, that, between the 20th and 26th of May, 1861, the defendant excluded him from the premises.

“ The defendant, in dispossessing me, had all my tools, my patent papers and my drafts for applying these independent seconds, and I could not go on afterward; I had nothing to refer to.”

He testified that he assigned, on the 15th of February,. 1861, his property*to the defendant, and delivered to him the property specified in the assignment. That, subse- . quent to that, and before the eviction, he received other property, on consignment, for sale, which he specified. He says: “I delivered him (the defendant) possession of such property as was in the schedule of the assignment. The other property he tools possession of was after he ejected me.”

“ This lot of guns the defendant seized, I had sold to a house on Broadway; these are the guns I bought of Mr. Bobbins, and paid cash for; they were sold but not delivered; they were to be delivered in about three days after he ejected me; these guns were in the store when I was ejected; I think they were there about a week previous.”

This evidence, uucontradicted or unexplained; would justify a verdict that the defendant wrongfully took into his possession the property which the plaintiff specified, and which he swore he procured after the assignment was made. Any one reading it, would naturally understand the plaintiff as testifying and intending to be understood as testifying that the defendant took actual possession and control of this personal property, claiming the right to control it.

It is evident that the defendant’s counsel so understood it. Eor, subsequently, (and after the complaint was dismissed as to this cause of action,) and in giving his version' of what occurred, when the policeman came there about an hour after the dispossessing, he says : “ I stated to the policeman that he (the plaintiff) did not belong there; that I was assignee and held the property, whatever there was, and I then and there stated he could not come in ; neither could the officer.”

This makes it very clear, that the defendant excluded and intended to exclude the plaintiff from the possession of every item of personal property, and that he took actual possession, under a claim of right, of every article of it.

I think it was error to nonsuit the plaintiff. Whether the Jury would have found that the plaintiff had bought property after the assignment, which the defendant took when he ejected the plaintiff—is another question. If they, had, their verdict would not be against evidence. The Jury believed him, in respect to the fact of his having hired a part of the store from the defendant.

It was not a case for vindictive damages, and the defendant in fact, and in good faith, believed that there was no property there, except the assigned premises. But if entitled to recover anything, the plaintiff was entitled to his actual damages. If his testimony was credited, they amounted to more than six cents. If he was at the time receiving $120 per week, and paying workmen only $24, and this business was entirely broken up, the damages were more than six cents.

The uncertainty how long he would earn profits, may be a good reason for not allowing, for a loss of profits beyond the time the evidence showed they would be earned. But, it cannot be possible, that a man in actual business, shown to be at the time actually profitable, is restricted to six cents damages, for the entire and sudden destruction of the business. (St. John v. The Mayor, &c., 6 Duer, 315; 3 Bosw., 483.)

The verdict should be set aside, and a new trial granted, with costs to abide the event.  