
    James W. Fry, App’lt, v. Elijah L. Clow, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 11, 1889.)
    
    1. Conversion—Action for—Statute of Limitations—Code Crv. Pro., § 410. ■
    Where there is a delivery of personal property which is not to he returned at any fixed time nor upon any fixed contingency, the time ■ within which the action may be commenced under section 410 of the Code • of Civil Procedure, modified by the second exception thereto, is to be computed from the day when demand was actually made.
    2. Same—Demand—What wild be sufficient.
    Where the plaintiff had demanded of the defendant the piano (which . was the subject of suit, and' of which the defendant claimed to be the ■ owner), in a building on the defendant’s premises in which he was found at work, the piano being in the house on the same lot, and the defendant made no reply to such demand, Held (1), That the plaintiff could do no more by way of demand, nor could he compel the defendant to speak in ■ response; that he could not enter defendant’s house to take the piano without his license to do so, and that the defendant’s silence was equivalent to a refusal of such license.
    S. Same—What constitutes conversion—Question for jury.
    
      I-Ield (2), that while mere silence did not of itself constitute conversion, yet all the facts connected therewith were to he considered hy the jury, and it was for the jury to say whether the withholding of such permission hy the defendant in connection with his assertion of title to the property, was not equivalent to an express refusal to surrender it to the plaintiff.
    4. Same—When Statute of Limitation begins to run.
    By the general provisions of section 410 of the Code Civil Procedure, the statute would have commenced to run against plaintiff’s cause of action at the time when he might have demanded possession, although such effect given to the section would have been in direct contradiction of the rule at ■common law, by which, in cases where demand and refusal are .necessary to constitute a conversion, the statute runs only from the date of such demand and refusal. But the second exception in the statute saves the rule of common law from the effect of the general provisions of the section.
    Appeal from a judgment of the county court of Monroe county dismissing the plaintiff’s complaint.
    
      H. L. Bennett, for app’lt,• G. P. Decker, for resp’t.
   Dwight, J.

The action was for the conversion of a piano and stool. The complaint alleged property in the plaintiff, the right to immediate possession, and that the same was duly demanded by him and refused by the defendant. The answer among other things denied the allegation of demand and refusal and pleaded the Statute of Limitations.

The defendant came into the possession of the property in 1874, under a written contract with the plaintiff’s assignors (D. L. Fry & Co.), by which he was to pay for its use the sum of $425, in instalments of fifty dollars every six months, with interest annually, on the sum unpaid; the pianand stool to remain the property of D. L. Fry & Co., until the whole sum was paid, when they were to become thproperty of the defendant. The plaintiff succeeded to the rights of D. L. Fry & Co., in 1875. The defendant made payments at different times amounting in all to $399, the last payment being made in May, 1880.

In July, 1887, the plaintiff requested payment of the balance due him on the contract, which the defendant refused on the ground that, “his note” was outlawed, and denied that he had made any such contract as that above stated. In August following, the defendant obtained possession of the contract, under the pretence of examining it, and refused to return it to the plaintiff. In September, 1887, the plaintiff demanded of the defendant possession of the property in presence of a witness whom he had taken with him' for that purpose, in a building, on the defendant’s premises, in which he was found at work,1 the piano being in the house on the same village" lot; the conversation, as related by the plaintiff, was as follows: “I told him I had come to demand my pay for my piano; he said he did not owe any-' thing for his piano; I told him I demanded my piano; he made no reply; I told him I demanded my contract again, but he made no reply to that.” This motion was brought a few years after.

At the close of the plaintiff’s evidence, by which the foregoing facts were established, the defendant moved that the complaint be dismissed on the ground that the evidence did not make out a conversion of the property, and that the plaintiff’s claim was barred by the Statute of Limitations. The court granted the motion, stating that it did so on the ground last-mentioned.

The Statute of Limitations was not an available defense to this action. To make it such the defendant relied upon the general provision of section 410 of the Code of Civil Procedure; whereas the case falls strictly within the second ■exception to that provision, which is contained in the same section. The general provision is as follows: '‘Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced, must be computed from the time when the right to make the demand is complete; except in one of the following cases.” The second exception is as follows: “Where there was * * * a delivery of personal property not to be returned * * * at a fixed time or upon a fixed contingency, the time must be computed from the demand.”

The general provision above quoted has, usually, found application in cases where the cause of action was complete in itself, but a demand was made necessary, by statute or otherwise, as preliminary to the commencement of an action. Dickinson v. The Mayor etc., 28 Hun, 254; S. C. 92 N. Y. 584; Meehan v. The Mayor 28 Hun, 643. But the exceptions indicate that the general provision is entitled to a wider application; and it may perhaps be conceded that, but for the exception quoted, this case would have been governed by the general provision of the section, and that the statute would have commenced to run against the plaintiff’s cause of action, at the time when he might have demanded possession of the property; although such effect, given to the provision of the Code would have been in direct contravention of the rule at common law by which in cases where demand and refusal are necessary to constitute a conversion, the statute runs only from the date of such demand and refusal. See Kelsey v Griswold, 6 Barb, 436: Roberts v. Berdell, 61 Barb. 37; S. C.; 52 N. Y. 644. But the case is clearly within the exception, which saves the rule of the common law from the possible effect of the general provision of the section. Here was a delivery of personal property which was not to be returned at any fixed time nor upon any fixed contingency. The time within which this action might be commenced was, therefore, to be computed from the day when the demand was actually made.

The question whether the evidence of demand and refusal was such as to establish a wrongful conversion of the property, was raised by the motion for a non-suit, though not referred to in the decision of the motion. We think there was sufficient evidence to go to the jury on that question. The evidence covered three interviews between the parties, described above. In July the defendant denied that he ever made the contract; in August he obtained possession of the contract and tortiously withheld it from the plaintiff, and in September, when asked for pay for the piano, asserted that it was his; and, when asked for the piano itself, was silent. The plaintiff could do no more by way of demand, nor could he compel the defendant to speak in response. He could not enter the defendant’s house to take the piano without the defendant’s license to do so; and his demand may be regarded as equivelant to a request for, and the defendant’s silence to a refusal of such license. The defendant had dominion of the piano; it was in his house, on the premises where the demand was made. If he had responded to the plaintiff’s demand for the property by saying ‘ ‘go and get it,” or “you are at liberty to take it,” nothing more could have been required of him, by way of accession to the demand. It was for the jury to say whether his withholding of such permission, in connection with his as sertion of title to the property, was not equivelant to an express refusal to surrender it to the plaintiff. Richards v. Pitts. Ag. Works, 87 Hun, 1. In the case cited the court held that mere silence did not of itself, constitute conversion, but that all the facts connected therewith were to be considered by the jury.

We find no ground upon which the dismissal of the complaint can stand in this case.

The judgment must be reversed and a new trial granted, costs to alude event.

All concur.  