
    CHRISTOPHER v. LANGDON & GRANGER BREWING CO., Limited, et al.
    (Supreme Court, Appellate Division, First Department.
    May 6, 1898.)
    Con vs rsion—Evidence.
    At the trial of an action for conversion of goods of the plaintiff- by the defendant brewing company, it appeared that a marshal, acting under executions issued upon judgments in actions brought against plaintiff and another by an assignee of the brewing company, in which process had not been served on plaintiff, had levied on the property and removed it on trucks of the company, but the latter was not a party to the actions in which the executions were issued, and was not shown to have exercised any dominion over the property after its seizure. Held, that the complaint, as against the company, was properly dismissed.
    Appeal from trial term, Hew York county.
    Action by James W. Christopher against the Langdon & Granger Brewing Company, Limited, and others. From a judgment dismissing the complaint, plaintiff appeals.
    Affirmed.
    The complaint alleges two causes of action, one for conspiracy and the other for conversion, but the plaintiff elected to try the case only upon the question of conversion. The material allegations of the complaint are that on May 15, 1803. the plaintiff was the owner of a liquor business and all personal property and fixtures in the store, No. 2337 Second avenue; that on said day the defendants caused to be executed illegal seizures or levies upon said property, and illegally removed and converted the same, and wholly omitted to comply with the statutes in making such seizures; that the plaintiff made a demand for the retúrn of said property, but that the defendants wrongfully sold the same on May 22, 1893. All the defendants except Mullen appeared, but only the Langdon & Granger Brewing Company answered. Their answer is a general denial.
    The plaintiff offered evidence tending to show that on October 11, 1892, he and the defendant Mullen entered into written articles of co-partnership for the purpose of carrying on the liquor business, under the firm name of Mullen & Christopher, and commenced business at No. 2337 Second avenue, where a saloon had theretofore been conducted by one O’Toole. Prior to the formation of the co-partnership, the defendant company had left on storage at O’Toole's saloon certain stock ale, which remained there unbroached after Mullen & Christopher took the business. Up to some time in November, 1892, the co-partnership bought certain malt liquors from the defendant company, and fully paid for the same, excepting the sum of $30, which the plaintiff claims was adjusted by returning some casks of ale. The plaintiff personally purchased all the liquors bought after the formation of the co-partnership, and in November, 1892, ceased to deal with the defendant company, and bought instead from another brewing concern. About April 20, 1893, the business being unprofitable and the rent unpaid, Mullen told the plaintiff that he was going to abandon the business, and that, if the plaintiff wanted to he could go on with it alone. The plaintiff asked Mullen how that was to be done, and Mullen said, “You can go on, and I will just drop out of sight in regard to the store.” The liquor license was in Mullen’s name, and, as a transfer would cost $20, Mullen advised the plaintiff to let it remain until the license expired, when a new one could be obtained in the plaintiff’s name. The plaintiff informed the defendant Mortimer of this arrangement between him and Mullen within a week or two after it was made. Mortimer was an agent or representative of the defendant company. On May lo, 1S93, while the plaintiff wras absent, the defendant Scanlon, a city marshal, accompanied by Mortimer and Mullen, cama to the store and levied upon the property and license under two executions issued out of the Seventh judicial district court upon judgments in actions wherein Mortimer was plaintiff and Mullen and Christopher were named as defendants; and, assisted by Mullen and Mortimer, the marshal seized and carried away upon the defendant company’s trucks the entire stock, including the ale which had remained there on storage, and removed the same to the defendant company’s premises. The judgments upon -which the executions were issued purport to be rendered upon an assigned claim of the defendant company to Mortimer against the firm of Mullen & Christopher. The processes in the two actions wore served only upon the defendant Mullen, on May 9, 1893, and were made returnable on May 15th, wfhen judgments by default were entered and the levies made. Until the seizure of the property, the plaintiff was ignorant of the existence of the claims as well as of the actions to collect them. Upon returning to the store on May 15th, he found the marshal and Mortimer there, and the marshal, in response to his inquiry, told him that he had seized the store upon a judgment got against Mr. Mullen by the Langdon & Granger Brewing Company. After the seizure the plaintiff went to the office of the defendant company and demanded the return of his property. Mr. Granger, representing the defendant company, in the course of the ensuing conversation admitted that the plaintiff did not owe his company anything, but said that they had adopted this course for the purpose of getting their ale out of his store, and promised, after hearing the plaintiff’s story, to return to him the liquor license. On May 22d the property -was sold under the levies. At the close of the plaintiff’s case a motion was made to dismiss the complaint, which was granted upon the ground that the plaintiff had not sustained the burden of proving the termination of the partnership, and the plaintiff’s motion to go to the jury upon all the issues was denied. Judgment accordingly was thereafter entered, from which the plaintiff appeals.
    Argued before VAN BKUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ„
    Leonard Brenner, for appellant.
    Robert 0. Beatty, for respondent Langdon & Granger Brewing Co.
   O’BRIEN, J.

The questions as to whether the property levied upon by the marshal was the individual property of the plaintiff or the joint property of the firm of Mullen & Christopher, and as to whether at the time the judgments were entered the plaintiff was indebted to the brewing company, and, not having been served, has the right collaterally to attack the judgments, would only be important if the plaintiff had proceeded upon the theory of a conspiracy on the part of all the defendants to ruin his business, or if he were seeking a determination of the sufficiency of the evidence as against the defendants other than the brewing company. The theory of conspiracy, however, was abandoned upon the trial, and there, the other defendants having failed to answer, the single question was presented, as it is again upon this appeal, as to whether there was sufficient evidence adduced from which the jury could legally infer that the .brewing company had converted the plaintiff’s property. Whether the property in the store belonged to the plaintiff individually, or was the joint property of the co-partners, would be entirely immaterial as to the liability of the brewing company, unless the evidence would justify the inference that the company had converted the property. In other words, the gravamen of the action, as against the brewing company, was the conversion of the property. The court below dismissed the complaint, on the ground that there was not sufficient evidence to prove that the property levied upon, which concededly at one time had belonged to Mullen & Christopher, had prior to the levies been transferred, and become the individual property of the plaintiff. But, even assuming that the ground of the ruling was incorrect, the dismissal was right, if there was no sufficient basis for the inference that the defendant company was guilty of converting the property.

It appears from the testimony of the bartender, who was present at the time of the levy, that the marshal took the property,, locked up the place, and took away the keys. It is conceded that judgments were obtained and executions issued, and that the subsequent levy and sale of the property were acts of the marshal to whom the executions were delivered. The defendant company was not a party to the actions in which the judgments were obtained or the executions issued, nor was it made to appear that the company in any way exercised dominion over the property after the leA'ies under such executions, or that it purchased at the sale; all that appears being that Mortimer, to whom the company had assigned its claim and who obtained'the judgments, used the trucks-of the -brewing company for the purpose of remoAdng the property, Avhich was taken to the brewery premises and subsequently sold. These circumstances, standing alone, would not justify the inference that the company had converted the property, in the face of evidence that the acts complained of in taking the property and its subsequent sale were the result of a levy made by the marshal under the Mortimer judgments.

Maying concluded, therefore, that there was not sufficient caudence of conversion by the brewing company, we deem it unnecessary to discuss the other questions in the case, which could only arise as between the plaintiff and the other defendants, Mortimer and Scanlon, who are not represented upon this appeal. It seems that they appeared, but did not answer; and, presumably, the plaintiff would be entitled to proceed in the orderly way to obtain judgment as against them., Some confusion arises upon the record, however, growing out of the fact that upon the trial Mortimer and the marshal appeared, the former personally and the latter by attorney, and the judgment dismissing the complaint is in favor of all the defendants. The motion to dismiss the complaint upon the-trial was made only by the brewing company, and was not made on behalf of all the defendants, and could not have been made as to the defendants who were in default for failure to answer. But the only point argued upon this appeal is as to the propriety of the-ruling in favor of the brewing company dismissing the complaint. Whether the evidence was sufficient, as against Mortimer and the marshal, we have not considered it necessary to determine, because it was not urged nor discussed by the appellant, and we have therefore confined our attention to a determination as to whether the judgment so far as it is in favor of the brewing company is right. Having reached the conclusion that it is, we think the judgment should be affirmed, with costs. All concur.  