
    August Trenkman, Appellant, v. Minnie L. Schneider, Respondent.
    (City Court of New York, General Term,
    May, 1897.)
    Verdict — Conversion of steam — Weight of evidence.
    Where the jury has found, in an action for conversion of steam, that defendant took such steam without the plaintiff’s knowledge or consent, by the insertion of a pipe in the regular supply pipe, and there is proof of the value of such steam, it is their duty to find in plaintiff’s favor in some sum, and a verdict that he is not entitled to any damage is against the weight of evidence and cannot be permitted to stand.
    Appeal by the plaintiff from a judgment in his favor.
    Edward S. Clinch, for appellant.
    Theodore Sutro, for respondent.
   McCarthy, J.

This is an appeal from a judgment from a most peculiar verdict of a jury and upon which the court ordered judgment to be entered for the plaintiff and to which the plaintiff duly excepted.

The action was one for conversion,of a quantity of steam taken between the years 1891 and 1893 by the wrongful tapping and inserting of a certain pipe into the regular pipe provided for the use of the tenants in the premises owned by the plaintiff, and portions of which were leased to the defendant, and thus using during said period steam without the knowledge or consent of the plaintiff.

While the lease was admitted in evidence, the covenants therein had nothing- to do with the case, since a breach of these covenants .would not justify the. taking and using of the steam in the manner and method alleged.

The defendant, of course, would have his remedy for breach of such contract, but not in this way.

The only question then was whether any steam had been taken and converted and was it taken with the knowledge and consent of the plaintiff.

The defendant, however, admitted by her amended answer that she appropriated, tapped the regular pipe with a one-inch pipe and thus obtained and used steam not provided for under the terms of her lease.

This she corroborates by the testimony of Eudolph Schneider, her agent, that the same was used and converted between December, 1891, and April, 1893, but claims that it was with the knowledge and consent of the plaintiff.

But the jury have found on the disputed facts that the defend ant did tap the pipe without the knowledge, and, therefore, with out the consent of the plaintiff.

The only point at issue being thus disposed of favorably to tin plaintiff, the next question to be determined by them is what an the damages, but the jury, although finding in favor of the plain tiff on the principal issue, sáy that the plaintiff is not entitled b any damages.

But the defendant admits the use of this steam for over two year and Henry Trenkman, son of .the plaintiff, testifies how he arrive at the value of the steam and says: '

“■ The cost of steam is measured by figuring the amount óf cos we can consume, the amount' of the water, oil, salaries, small dis bursements and other expenses; those aré figured up, and we fin out how many horse power we deliver to him, and how much ; costs us.
It ultimately depends upon the cost per horse-power develope . by the boiler and engine; and the value of that horse-power is gei erally estimated at so much a year. Live steam is $70 per year. It was live steam that was to be furnished Mrs. Schneider under the terms of the lease to which reference has been made.”

And, again, Eichard Carter, a witness for the plaintiff, says:

I am the chief engineer in the employ of Mr. August Trenkman, and have been three years. X have passed an examination as to my qualifications as an engineer before the boiler inspection board of this city, and I have also received a diploma from Cooper Union for mechanical drawings in the engineering department.
“ I am somewhat familiar with his plant and with this exhibit of pipe that is before me. I am able to state how much horsepower could be developed by steam passing from a boiler in which the pressure was at least sixty pounds to the square inch and passing through a one-inch pipe. The amount is seven horse-power.”

If there was used seven horse-power per year in this place and its value was $70 per year for one horse-power it would make $490 and this would be so much more for the number of years admitted by the defendant.

But the jury were not bound to take these figures. They could find in such sum as the evidence might warrant.

Having found in favor of the plaintiff on the principal issue, and talcing" in consideration the conceded facts, they must find in some sum in favor of .the plaintiff.

The verdict was against the evidence, the weight of evidence, and against the logical consequences of their finding for the plaintiff on the principal issue.

The judgment must, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Wyok, Oh. J., and Eitzsimons, J., .concur.

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