
    Samuel Baumann, App’lt, v. Thomas Jefferson, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 5, 1893.)
    
    1. Conversion—Assignability of cause of action.
    A right of action for the wrongful taking and conversion of personal property is assignable, even though the assignor apparently retains title to the property. Such an assignment is as much an election of remedies as if the assignor had commenced an action for conversion, and thereafter neither he nor those in privity with him could maintain an action to recover the property.
    2. Same—Demand.
    A personal demand upon the person converting property is not necessary. A demand made upon his servant or agent who is charged with the duty of receiving, keeping or caring for and delivering the property for his principal or master is sufficient; and for that purpose the title to the property need not be exhibited.
    3. Same—Warehousemen.
    v Where a chattel mortgage prohibiting the removal of the goods without consent of the mortgagee has been duly filed, a warehouseman subsequently receiving it has no lien and cannot withhold the same from the rightful owner.
    Appeal from a judgment rendered in the district court oT the city of New York for the ninth judicial district.
    
      George Hahn, for app’lt; Theodore F. Friend, for resp’t.
   Bookstaver, J.

This action was brought against the defendant, who is a warehouseman, to recover damages alleged conversion of personal property. On the trial the plaintiff proved that one Maggie Kane purchased of plaintiff’s assignor certain goods, including those in question, for which she agreed to pay $65.10, of which she paid only five dollars, and executed to the plaintiff’s assignor a chattel mortgage upon the goods to secure payment of the remainder of the purchase money, and that she never paid more of that remainder than five dollars. A copy of the mortgage was duly filed in the office of the register of the city and county of New York. The justice rendered_ judgment against the plaintiff for the dismissal of the complaint on the ground that the assignment under which he claimed was insufficient and did not assign to him the chattel mortgage covering the goods for the alleged conversion of which this action was brought

Whether an action for the conversion of personal property is assignable or not was a moot question as far back as 1837. In People v. Tioga Common Pleas, 19 Wend., 73, the leaiped Judge Oowen, in speaking of choses in action, said, “ that for the purposes of any sort of assignment, legal or equitable, I cannot find that the term has ever been carried beyond a claim due either on contract or such whereby some special damage has arisen to the estate of the assignor; ” and his conclusion is that demands arising from injuries strictly personal, whether arising upon tort or contract, were not assignable, but that all others were. Notwithstanding this conclusion of Judge Cowen, there was a conflict of opinion on this question among the judges of the supreme and other courts, and the cases quoted by the respondent were decided during that time. But after the passage of the Code of Procedure in 1855, it was finally and authoritatively decided by the court of appeals in McKee v. Judd, 12 N. Y., 622, that a right of action for the wrongful taking and conversion of personal property was assignable. And this decision has been followed ever since. Drake v. Smith, 12 Hun, 532; McKeage v. Hanover Ins. Co., 81 N. Y., 38. Indeed, this rule has been adopted and included in the Code of Civil Procedure, § 1910, which expressly provides, “ any claim or demand can be transferred except in one of the following cases; ” then follow the exceptions, which are the recovery of damages for a personal injury, or for a breach of promise to marry, or where the claim is founded upon a grant made void by a statute of the state, or upon a claim to interest in real property, a grant of which by the transferee would be void by statute, and where a transfer is expressly forbidden by statute of the state or United States, or would contravene public policy.

There has also been felt to be a difficulty in allowing a recovery upon the mere assignment of the chose in action for conversion where the assignor apparently retains title to the property. To overcome this the courts have suggested that such an assignment, although it does not so state in express words, carries with it the title to the property. And this was held in McKeage v. Hanover Ins. Co., supra. But we think it can be put upon a stronger ground, and one that will be applicable to any case that might arise under such an assignment. When the owner of personal property has been deprived of it by the wrongful acts of a stranger, amounting to a conversion of it, two courses are open to him; he may sue in conversion to recover the value of the property, or in replevin to recover the property itself and damages for its withholding. But he cannot simultaneously pursue both remedies, for to, allow him so to do would be to enable him to recover both the property and its value. Accordingly it has been held in such cases, as in all others where two or more inconsistent remedies are open to an aggrieved party, that by commencing an action upon one he makes his election to surrender the others. Van Orden v. Van Orden, 10 Johns., 30; Winter v. Livingston, 13 id., 54; Oatman v. Taylor, 29 N. Y., 649; Rodermund v. Clark, 46 id., 354; Bridgford v. Crocker, 60 id., 627 ; Moller v. Tuska,, 87 id., 166; Linden v. Fritz, 3 Am. L. J., N. S., 421; Benedict v. Bank, 4 Daly, 171; Becker v. Walworth, 45 O. St., 169; Yate v. Liggatt, 2 Leigh, 84; Lane v. Lutz, 1 Keyes, 203; Morris v. Rexford, 18 N. Y., 552; Blessy v. Kearney, 24 La. Ann., 289; Philadelphia, etc. Co. v. Howard, 13 How., U. S., 307. Where after the conversion by a wrongdoer, and before action is commenced, the property is wholly destroyed by fire or otherwise, there can be no doubt but that an action for the conversion could be maintained by an assignee, and yet it is clear that in such case there could be no title to the property, for it has ceased to exist. So, also, where one holds a chattel mortgage upon personal property to secure the payment, say of $1,000, and only a part of the property has been converted, there is no doubt but that an assignment might be made to a third party of the right to recovér for the property so converted, and yet in that case it could not be said that such an assignment carried with it the whole mortgage. In such case the mortgagee would have the right not only to sue for the property actually converted, but also the right to retain his mortgage upon the property not converted.

In the case under consideration, the assignor before making the assignment had duly demanded the property of the defendant It is true that a mere demand would not determine his election, but the commencement of an action would; and we think an assignment of the right of action to the plaintiff herein equally concludes him, for thereafter neither he nor anyone in privity with him could maintain an action for the recovery of the goods, which would be in bad faith both to his assignee and to the wrongdoer, and would enable him to do that which the doctrine of election forbids him to do. As assignment of the claim we hold to be as much an election as if he had actually commenced his action in conversion.

It is claimed by the respondent that no demand was made, but it is sufficient to make it upon the person having the possession of the property at the time, or upon his agent, or upon the person having control over the chattel; and a demand of property made upon a servant or an agent of the defendant who is charged with the duty of receiving, keeping or caring for and delivering the property for his principal or master is a sufficient demand. 4 Am. & Eng. Ena, 115; 5 id., 528, note 4. And for the purpose of making the demand, one need not exhibit his title to the property when he makes it. Cass v. R. R. Co , 1 E. D. Smith, 522. In this case it was proved that a demand had been made on behalf of plaintiff's assignor upon the brother of the defendant who was behind the desk at the time and who looked through the books and admitted that the goods were there; and the defendant upon the trial admitted that this brother had full charge of the business. It was also proved that the mortgage was shown to that brother at the time. It further appeared that the defendant refused to deliver the goods without the payment of his charges as warehouseman. The defendant was not entitled to exact the payment of storage charges. The mortgage, prohibiting a removal of the goods from the residence of the mortgagor without the -consent of the mortgagee, and had been duly filed, so that the defendant in contemplation of law had notice of it Under such circumstances we have held that a warehouseman has no lien upon the property and cannot withhold the same from the rightful owner. Baumann v. Post, 16 Daly, 385; 34 St. Rep., 308; Eisler v. Union Transfer & Storage Co., 16 Daly, 456; 35 St. Rep., 374.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant

Bischoff, J., concurs.  