
    Harriet N. K. Reichard, as Administratrix, etc., of Charles E. Kilmer, Deceased, Appellant, v. Edward F. Hutton and Others, Respondents.
    Third Department,
    January 12, 1912.
    Conversion—action by administratrix — party — assignment of stock — effect of failure to deliver — right of administratrix to sue — erroneous nonsuit after amendment to conform to proof—acts constituting conversion.
    Although before his death a decedent had indorsed stock to his wife and daughter individually, they gained no absolute title in the absence of proof of some act or circumstance of delivery; and hence the wife on the death of her husband, having been appointed administratrix, may maintain an action in her representative capacity to recover for a conversion of the stock. The title technically passed to her as administratrix, notwithstanding the avails of the stock may not have been necessary for the payment of debts, and notwithstanding that she and her daughter may have an equitable title thereto.
    Where property belonging to an estate has been interfered with by a third person, Or where the representative of the estate has permitted such interference so as to make himself liable for an accounting, an action for the wrong may be brought by the representative either individually, or in his representative .capacity.
    The plaintiff in an action for conversion should not be nonsuited on the ground that the conversion did not take place on the date originally alleged, if, the'true date having been shown, the court allowed an amendment to conform to the proof.
    It is a conversion for defendants holding stock to transfer it to other persons without the right to do so, even though the transfer be not a strict sale.
    Appeal by the plaintiff, Harriet IN". K. Reiohard, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 4th day of August, 1911, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Rensselaer Trial Term.
    
      Lewis E. Griffith [Black & Peck and Thomas S. Fagan of counsel], for the appellant.
    
      John T. Norton, William F. S. Hart and Millard F. Tompkins, for the respondents.
   Per Curiam:

We think the proofs raised questions of .fact for the deter-1 mination of a jury and that the granting of a nonsuit was improper.

The plaintiff could maintain the action in her representative capacity as administratrix. Confessedly the stocks all originally belonged to her intestate. Although the New York Central stock had been indorsed by the deceased over to the plaintiff and her daughter individually, absolute title had not passed to them because there was.no delivery. That stock, therefore, technically passed to the plaintiff as administratrix notwithstanding its avails may not have been necessary for the payment of debts and notwithstanding the plaintiff and her daughter may have had some equitable title thereto. As to the other stocks there is no question but what they belonged to the intestate.

. Where property belonging to an estate has been interfered with by a third person, or where the representative of the estate has permitted such interference and thus made himself liable on an accounting, an action for the wrong may be brought by the representative individually or in his representative capacity. It is no defense to such an action that it is brought in a representative capacity instead, of by the representative as an individual. (Wetmore v. Porter, 92 N. Y. 76; Bingham v. Marine National Bank, 112 id. 661.) The non-suit was not justified, therefore, on the ground that the action should have been brought by the plaintiff in her individual capacity instead of as representative of the decedent.

Nor was the nonsuit justified on the ground that the conversión, if any, did not'take place when the defendants' transferred the stocks to the credit of the Bliven account. The proof showed that the defendants subsequently sold all the stocks to another firm of brokers in liquidation of the Bliven account, and the trial court properly permitted an amendment of the complaint to conform to the proof. The complaint, therefore,, stood at the time of the granting of the nonsuit, charging the conversion at the time of the sale as well as at the other times alleged, and now so stands amended. Even if the transfer by the defendants of the stocks to the other brokerage firm was not a strict sale of them, its effect was the same, provided the defendants had no right so to do. Whether or not the plaintiff by her acts with respect to the various shares of stock estopped herself from claiming that the defendants had no right to apply them to the Bliven account or to transfer them to another firm, was a question of fact under all the circumstances for the jury.

Although the present action is one for conversion, the former action (sub nom. Kilmer v. Hutton, 131 App. Div. 625), based upon the theory of Bliven’s agency, involved the same facts, and in so far as the holding is applicable to the present form of action, we concur in what was said by the First Department.

It follows that the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Sewell, J., not voting, not being a member of this court at the time this decision was handed down.

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