
    Celestine Mullins, Resp’t, v. Charles T. Chickering et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed October 16, 1888.)
    
    1. Conversion—Defense interposed bt bailees.
    The plaintiff placed the piano in question, in the possession of the defendants, to be kept by them for her, and return upon her demand. The executors of the plaintiff’s husband, claimed title to the property, as having belonged to their testator, and demanded it of the defendants They chose to submit to the demand and delivered the piano to said executors. Thereafter, this action for conversion was commenced, and defendants were permitted to raise the question of the ownership of the executors by supplemental answer. Meld, that the defendants had a right to set up as a defense the jus tertii and defend it if they could upon the title of the testator, which had' passed to the executors, since before the action was tried they had submitted to that title, and delivered the property to those who claimed to be owners. They had taken upon themselves the risk of that title, but could defend upon it, and justify under it. They had a right to defend their surrender upon that title. Daneorth and Gray, JJ , dis senting.
    2. Same—Evidence—Competency oe—When one derives title from: DECEASED PERSON—CODE OlVIL PRO., § 829.
    Defendants having chosen to hold under the intestate, and derive their title and interest, and all their right to the property or its possession from, and under the deceased, came within the description of the Code CivÚ Pro., §829: “A person deriving his title or interest from, through or under a deceased person * * * by assignment or otherwise.” Against them, the plaintiff could not testify in her own behalf to any personal transactions between herself or her husband Daneorth and Gray, JJ., dissenting.
    2. Same—Admissibility oe evidence—Code Civ. Pro., § 829.
    The proof shows that the testator bought and paid for the paino with his own money. Plaintiff was allowed to swear that he gave it to her. Her testimony was objected to as being in violtaion of the Code Civ. Pro., § 829, but was admitted. Meld, error, for which the judgment should be reversed. Daneorth and Gray, JJ., dissenting.
    Appeal from a judgment of the general term of the court -of common pleas for the city and county of New York, affirming a judgment entered upon a verdict of the jury at the trial term of said court, and also affirming an order denying a motion for a new trial made upon the minutes and exceptions taken.
    In February, 1864, one John Mullins (now deceased), and then the husband of the plaintiff purchased of the defend-1 ants a piano for which he paid his own money. In November, 1881, John Mullins, died leaving a widow (the plaintiff), and three children by a former marriage. He left a will in which Mulligan and Murphy were named as executors. Soon after the death of Mullin, the executors made an inventory of his estate, in which they included this piano. The plaintiff at that time claimed to own it. Soon after the inventory was made the plaintiff had the piano taken to the defendants’ storage room for storage. The next day after the piano was taken to the defendants, the defendants received a written notice from the executors that the piano belonged to the estate of Mullins, and directing the defendants not to deliver the piano to any person except upon their written order. The piano remained in the possession of the defendants until April, 1883, when they delivered it to the executors upon their written demand. The piano was sold by the executors at public sale for $172.80. The proceeds were put into the estate, and the estate settled upon an accounting before the surrogate, and the plaintiff received her portion of the estate. . She knew that the piano was in the inventory and never made any claim of the executors for it. After it was delivered to the executors by the defendants, the plaintiff without making any demand from the defendants commenced this action for the conversion of the piano, alleging that she was the owner of the piano. After the commencement of this action, and after the plaintiff knew that the executors had taken the piano and sold it, and put the proceeds into the estate and accounted therefor, the plaintiff for a valuable consideration settled all claims against the executors and against the estate and gave a general release under sale. Upon the trial the plaintiff had a verdict for $519.75. The counsel for defendants moved for a new trial, upon the minutes and upon exceptions taken and upon the grounds that the damages were excessive, which motion was denied,
    
      Thomas H. Swift, for app’lts; Paul Fuller, for resp’t.
   Finch, J.

The defendants were bailees of the plaintiff. She placed the piano in their possession to keep for her and return upon her demand. They were not at liberty to dispute her title except in one emergency and at one peril. The executors of the husband claimed title to the property as having belonged to the testator, and demanded it of the defendants. They chose to submit to the demand and delivered the piano to the executors. By so doing they made themselves parties to the controversy, and when called on to return the property to the plaintiff their refusal exposed them to an action for conversion which has gone against them. They had, however, the right to set up as a defense the jus tertii, and defend if they could upon the title of the testator which had passed to the executors, since before this action was tried, they had submitted to that title, and delivered the property to those who claimed to be owners (W. Trans. Co. v. Barber, 56 N.Y., 544), and had been permitted to raise that question by the supplemental answer. They had taken upon themselves the risk of that title, but could defend upon and justify under it. They chose to hold under the intestate and to derive their title and interest and all their right to the property or its possession from and under the deceased, and had a right to defend their surrender upon that title. They came, consequently, within the description of section 829 of the Code of Civil Procedure as “a person deriving his title or interest from, through or under a deceased person, * * * by assignment or otherwise.” Against them, therefore, the plaintiff could not testify in her own behalf to any personal transactions between herself and her husband. She did so testify. The proof showed that he bought and paid for the piano with his own money. That established title in him. She met the emergency by swearing that he,' the owner, gave it to her. That proof was objected to on two grounds; as in violation of section 829, and as a conclusion of law. The first objection at least was good. A critical and close construction of the record might justify a ruling that the objection came too late and that a motion to strike out the evidence was needed.

But the respondent makes no such point. Her counsel assume that the objection was fairly and properly taken, but resist it as unsound. We ought not, therefore, to indulge in a severity of criticism which the silence of the respondent indicates would not be justified by what actually occurred, and the record shows notice of an objection given in advance, and repeated in detail, when the character of the evidence became apparent.

For this error the judgment should be reversed and a new trial granted, costs to abide event.

Andrews, Earl and Peckham, JJ., concur; Danforth, J., reads for affirmance; Gray, J., concurs, Huger, Oh. J., not voting.

Danforth, J.

(dissenting).—The action was begun July 8, 1888, for conversion by defendants of the plaintiff’s piano. The original answer was a general denial. On the 27th of April, 1885, by supplemental answer, the defendants say the piano was left with them by the plaintiff for storage, but was demanded by the executors of John Mullins, her deceased husband, as part of his estate, and delivered to them by the defendants, and that after the commencement of the action the plaintiff, with knowledge of this fact and that the said executors claimed the said piano as against any right or title of the plaintiff thereto, for a valuable consideration executed to the executors a full release and satisfaction of all claims and demands which the plaintiff then had against the said estate or the executors thereof, “and received full payment and satisfaction therefor, including the said piano, now the subject of this action,” to which said release the defendants refer as forming part of their answer and defense.

It seems obvious that the defenses are, first, a general denial, and second, a release by plaintiff to the executors and payment and satisfaction by them for the piano.

There is no defense on the ground that the executors were in fact, entitled to the piano, ór that it at any time be- ’ longed to or was the property of their testator, or that it in fact formed part of his estate. There is no allegation of title in the defendants, or in any third.person; simply that the executors made a claim. The defendants, therefore, have no standing under their answer to try the question of right as between the plaintiff and the executors. Upon the issue made by the general denial, the defendants’ case is no better. The action goes upon the ground that the defendants were bailees for hire, and wrongfully apppropriated the piano to their own use. Any possession of the plaintiff is sufficient to sustain it against a wrong-doer, who has no title, and who does not defend by reason of title in another. The plaintiff’s possession, therefore, gave her a good title against all the world, but the true owner. The evidence in this case leaves do doubt that the piano was in the actual possession of the plaintiff on the 27th of December, 1881; that ón that day she delivered it to the defendants for storage, and they received it from her for that purpose. The transaction was with defendants’ manager at their warehouse. She sent the piano by their cart to that place, and said to him, “ There is my piano. I wish you would keep it on storage for me,” and he said “very well.” The price for storage was agreed upon and the piano left with the defendants, who received it from the plaintiff to store for her, and it was so entered on their books. In September, 1882, the plaintiff went for the piano and demanded it, and was refused. At that moment she had a good cause of action, which would not have been discharged, even by a subsequent return of the property to her, much less by its delivery to a third person. But the supplemental answer, so far from showing a defense, in fact shows that the plaintiff was in position to maintain the action by simple proof of the possession by her of the piano. Her cause of action accrued in September, 1882, and the only pretense of its release pr discharge is founded upon the idea that the executors and the defendants were jointly hable for the conversion, and so it is claimed the release above referred to also discharged the defendants, by reason of the rule that the release of one joint tort feasor discharges all. The record itself, however, shows that the sole object of release was to dispose of another suit, then pending against the executors upon a wholly different cause of action, and that it had no reference to the one now before us.

A point is made by the appellants that the court erred in allowing the plaintiff to testify that • ‘her husband gave her the piano; - bought it for her.” Under the view already presented the source of the defendant’s possession was immaterial. The plaintiff’s case was made out by her possession of the piano and the contract of bailment between herself and the defendants and its breach by others, But being examined as to value, objections were interposed to her competency to speak upon that subject. She then stated that she was a musician, in the habit of using pianos, and being asked, “and of buying them or of having them bought for you by your husband,” no objection made to this question and she answered, “yes, sir,” and showed many other means of knowledge. She then testified to the value. She-was then asked, “where did you get the piano you delivered to the Chickerings ?” Defendants’ counsel: I desire to reserve any objection which may be made to her answer.” There was no reply to or notice taken of this observation, nor was the question answered. She was then asked, “did you buy it, or who gave it to you.” The question was not-objected to and the witness said, “it was bought by my husband for me from Chickering.” Defendants’ counsel-then said, “objected to,” but no ground was stated, nor does it appear that there was any ruling upon the objection, or if any, that any exception was taken. Then followed this question: “Your husband gave it to you.” A. “Yes; bought it for me.” Then follows, “objection by defendants-, as incompetent under section 829 of the Code, and as incompetent and immaterial, and further as being a conclusion-of the gift from her husband.” Objection overruled, defendants except.

First. As an objection to the question the exception carnetoo late and as an objection to the answers was insufficient. The remedy was by motion to strike out. Stevens v. Brennan, 79 N. Y., 254. Moreover the question had in-substance been before asked and answered and the evidence-called for was already in.

Second. But the evidence in view of the pleadings was. wholly immaterial and in no respect necessary to a perfect cause of action, which upon other evidence was established ■ upon a good foundation. It might be stricken out without-affecting the result. It therefore could riot have prejudiced, the defendant. Comstock v. Hier, 73 N. Y., 281.

Third. The section of the Code cited has no application. The action was not against the exécutors, nor did the defendant derive any “title or interest from, through or under a deceased person by assignment or otherwise.” The cause of action was complete in September, 1882. The demand of the executors was in 1883, and not until then, if ever, could the defendants, under any circumstances be considered as standing in their place. But it is a decisive answer to the objection that the defendants set up no title in the executors, nor in the estate with the management of which they were charged. I find nothing in the case to take the defendants out from the general rule that a bailee cannot deny the right of the person from whom he receives the property. They became by that act the agents of the bailor, and could not dispute her title. This rule applies to all cases where the bailor has not yielded to the paramount title in another, so that the bailment is determined by what is equivalent to an eviction by the real owner. It is not enough that the bailee has been notified of the claim of a third person, for possibly, as it is said, “the owner might never pursue his claim or enforce his title.” Case v. Hall, 24 Wend., 102; O’Brien v. Jones, 91 N. Y., 193. Nor is it enough that an adverse claim is made upon the bailee, so that he might be entitled to relief under an interpleader. Of course if in answer to the demand made by the plaintiff, the defendant had called upon the adverse claimants to come forward and litigate the matter, a different question would have been presented. Here there was no such call, and it would be most unjust te permit a bailee to deprive a bailor of her right of action for conversion by subsequent -dealings with a third party. As the case stands, the defendants were wrong-doers claiming under no one, and I find on this appeal no ground for reversing the judgment which requires them to make compensation.

The judgment should be affirmed.

Gray, J., concurs; Ruger, Oh. J., not voting.  