
    William E. Murphy, Respondent, Appellant, v. John Hofman Company, Appellant, Respondent. (Action No. 2.)
    Third Department,
    May 8, 1912.
    Conversion—inadequate verdict—new trial — evidence.
    In an action for the wrongful conversion of personal property a verdict for $900 should be set aside as inadequate and a new trial granted where it appéars that the defendant has sold the property for $2,800.
    In an action against a third party for the wrongful conversion of personal property alleged to have been purchased by the plaintiff from a receiver in bankruptcy, it is reversible error tó exclude evidence offered by the defendant to show that the bankrupt and the receiver had no title to the property.
    Cross-appeals by the plaintiff, William E. Murphy and the defendant, the John Hofman Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 4th day of December, 1911, upon the verdict of a jury rendered by direction of the court. Also an appeal by the plaintiff from an order entered in said clerk’s office on the 4th day of December, 1911, and an appeal by the defendant from an order entered on the 9th day of December, 1911, denying their respective motions to set aside the verdict of the jury and for a new trial.
    
      Shaw, Bailey & Murphy [H. D. Bailey of counsel], for the plaintiff.
    
      James Farrell, for the defendant.
   Kellogg, J.:

The Dodge Drygoods Company was in the possession of certain show cases and property in 1903. Bankruptcy proceedings were instituted against it, and the receiver in bankruptcy sold the property to the plaintiff. The defendant took the property, claiming it as its own, and immediately sold it for $2,800. The plaintiff purchased the property, with other property, for $1,665, but at a sale where there was no real bidding and when .it was understood that the title to the property was contested and in dispute. If the defendant wrongfully converted the property, it is evident that the verdict enables it to profit by its own wrong, as it will pay but $900 for property which it wrongfully converted and immediately sold for $2,800. From the fact that the defendant realized $2,800, and other facts in the case, it is evident that the verdict of the jury is excessively small and entirely inadequate to compensate the ■ plaintiff. The plaintiff is, therefore, entitled to a new trial upon the ground that the damages are insufficient and the verdict against the evidence. The fact that the bankrupt was in possession of the property. gave to the receiver, and consequently to the plaintiff, prima facie evidence of ownership. But the. defendant attempted to show that the bankrupt and the receiver had no title to the property. This was excluded, apparently for the reason that the plaintiff acquired a title' by the receiver’s sale. It is evident that the receiver could obtain no better title to the property than the bankrupt had. The defendant, as against the bankrupt, the receiver, or a purchaser at receiver’s sale, might establish its title to the property. The record does not indicate that the litigation in which the receiver personally was a party was conducted in such manner and with such result as to be binding upon the defendant; and we cannot say that as against the defendant it establishes any title in the plaintiff. If facts exist which would make it binding upon the defendant there has been a failure to establish them.

The defendant Is, therefore, entitled to a new trial on the ground that it was erroneously prevented from showing its alleged title or interest in the property as against the Dodge Drygoods Company, the receiver and the plaintiff. The judgment and orders should, therefore, be reversed and a new trial granted, without costs.

All concurred; Betts, J., in result.

Judgment and orders, reversed, without costs, and new trial granted.  