
    Edward Hensey, Respondent, v. Dulany Howland, Appellant.
    (New York Common Pleas
    Additional General Term,
    January, 1895.)
    A servant cannot be made liable as for a conversion of chattels of which he has the custody at the hands of his employer and which he refuses to surrender at the demand of a stranger, even where he may have reason to believe that the stranger has a good title to the chattels.
    Plaintiff’s vendor placed certain printing forms in the possession of the New York Herald under a contract for printing made through defendant as superintendent of the Herald. Thereafter a demand for said forms was made of defendant, who replied that a deposit would be required as a condition for their return. Held, that defendant was not in possession of the goods, and that his failure to return them on demand could not be made the basis of an action for conversion against him.,
    Appeal from a judgment of the District Court in the city of New York for the eleventh judicial district, rendered by the justice, without a jury, in favor of the plaintiff.
    
      William John Wa/rbv/rton, for respondent.
    
      John Townsend, for appellant.
   Bisohoef, J.

This is an action for the conversion of certain printing forms. The chattels in suit had been placed by plaintiff’s vendor in the possession of the New York Herald under a contract for certain printing work in performance of which the use of such forms was required, the contract being made through the defendant, the superintendent of the New York Herald.

Prior to the sale of the chattels to the plaintiff a demand for their return was made of the defendant by the plaintiff’s attorney, then acting on behalf of the vendor, and in reply a - letter was received by him bearing as heading “ The Herald ” and subscribed “James. Gordon Bennett, Dulany Howland, Superintendent,” which was to the effect that a deposit would be required as a condition to the return of the goods.

Recovery below was resisted by the defendant upon the ground that he was but an employee of Bennett, the proprietor of the Herald, and that he had not the possession-of the chattels, and it is upon such ground that the appeal is rested.

It is true that a wrongdoer may not plead agency for ' another in extenuation of his wrongdoing, yet, on the other hand, a servant is not to be made liable as for a conversion of chattels of which he has the custody at the hands of his employer and which he refuses to surrender at the demand of a stranger, and this, also, even where he may have reason to believe the stranger to have good title to the chattels. Goodwin v. Wertheimer, 99 N. Y. 153 ; Mount v. Derick, 5 Hill, 456.

There appears to be no conflict as to the essential facts of the case, and it was shown that the plaintiff’s vendor in makr ing his contract for the printing work understood that the Héw York Herald was to assume the performance. His contract was with the Herald through Mr HoAvland; he knew that the defendant “was superintendent of the Herald; ” he ordered the chattels “ to be delivered to the Hew York Herald,” and he “employed the proprietor of the Hbav York Herald to do this work.”

Thus, in making the agreement in accordance with which the goods were delivered, the plaintiff’s vendor dealt knowingly Avith the defendant as an agent, and the goods were not then intrusted to the defendant’s personal custody, but to the Hew York Herald.

Possession was not, therefore, in defendant when dominion over the goods Avas originally transferred from the plaintiff’s vendor to the Herald, and the evidence fails to show any change in his relation toward the same, either before or after their sale to the plaintiff.

Hot having possession, his failure to return the chattels upon demand cannot form the basis of an action against him for their conversion (26 Am. & Eng. Ency. of Law, 729, and cases cited), and while he may have had some control over or access to the goods, this appears to have been but in his character as servant, the identity of his employer being fully disclosed to the parties, and he was thus under no duty to comply with the demand made.

Upon the facts disclosed the recovery below is not to be sustained, and the judgment is, therefore, reversed and a new trial granted, with costs to abide the event. '

Bookstaver, J., concurs.

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