
    James G. Wilson, App’lt, v. Richard Cummings, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed July 3, 1893.)
    
    1. Conversion—Chattel mortgage.
    Plaintiff held a chattel mortgage upon certain mantel mirrors in a house which, a few days after the mortgage became due, was sold to defendant on foreclosure oí a mortgage on the realty. At the time of such sale the mirrors were in apartments occupied by tenants who attorned to defendant. Held, that the sale conveyed no right to the mirrors to defendant; but as long as the tenants remained in possession during their unexpired terms, he did not acquire possession of the mirrors and could not be guilty of a conversion of them.
    3. Same—Re-letting.
    There was some evidence that some of the tenants had moved out and that defendant had relet the apartments to other tenants together with the mirrors. Further proof on this question was excluded. Held,, that the complaint was improperly dismissed, as if the re-letting was proved a conversion to that extent would have been established irrespective of any demand.
    Appeal from judgment dismissing plaintiffs complaint upon the merits, and from order denying plaintiff’s motion for a new trial.
    The action is for conversion of chattels.
    The plaintiff held a chattel mortgage on certain mantel mirrors situate in the houses known as Nos. 221, 223, 225 and 227 West One Hundred and Fifteenth street, New York city, which was to become absolute unless the sum secured thereby should be paid by November 10, 1891, and at least seven days before the sale of said premises where said chattels were situated. This mortgage was executed by Hiram Moore and Arthur E. Moore, who owned the houses and had bought the mirrors. The premises were sold under foreclosure on October 13, 1891, and plaintiff’s title to the chattels became absolute pursuant to the terms of the chattel mortgage, the money secured not having been paid. Nine of these mirrors, worth $109.50, were then in house No. 221. This house was purchased by the defendant, and he took possession of the same some time in October, 1891. The house was then occupied by tenants who attorned to the defendant and held possession of their apartments, and of the mirrors, under him as landlord and owner. The defendant had in his employ a janitress, who had general charge of the building. At the foreclosure sale the plaintiff gave notice of his title to the mirrors, and the defendant received a copy in writing. Afterwards, and when defendant was in possession of the premises, plaintiff made repeated demands upon him for the said chattels. Defendant in his dealing with plaintiff admitted that the chattels were in his possession, but put plaintiff off from time to time with promises of a final answer to his demand. At length defendant’s attorney, to whom plaintiff was referred by defendant, informed plaintiff that if he supposed he had any right to the chattels he must enforce it by suit.
    The janitress had already refused to surrender the mirrors without defendant’s consent.
    The mirrors were simple chattels, and in no wise affixed to the realty.
    On this state of facts the trial court dismissed the complaint on the ground that the defendant was not in actual possession of the chattels at the time of demand-made. And for the same reason the court refused to allow plaintiff to prove that defendant rented the mirrors to his tenants along with their apartments.
    
      Francis Forbes, for app’lt; Richard N. Arnow, for resp’t.
   Freedman, J.

The complaint having been dismissed at the trial upon plaintiff’s proof and by reason of the failure of the plaintiff to establish that the, defendant was in the actual possession of the chattels for the conversion of which this action has been brought, the dismissal, if otherwise proper, should not have been upon the merits.

A review of the whole case has satisfied me, however, that the complaint should not have been dismissed at all.

Under the chattel mortgage plaintiff’s title and right to immediate possession of the mirrors were complete. The mirrors were simple chattels and thé foreclosure sale of the real property to the defendant conveyed to him no right to or interest in the said mirrors. McKeage v. Hanover Fire Ins. Co., 81 N. Y., 38. Moreover, the plaintiff gave public notice of his claim at the foreclosure sale.

Now it may be conceded that the defendant did not become liable for a conversion of the mirrors simply because he purchased the premises and subsequently refused to deliver "up the mirrors on plaintiff’s demand. Plaintiff was bound to prove, as part of his case, that prior to the demand made, the mirrors, or so many of them as he sought to recover for, had come into the possession of the defendant, or that the defendant had wrongfully taken them prior to the commencement of the action. At the time the defendant acquired title to the premises the mirrors were in different apartments in the building occupied by tenants to whom the apartments had been let by defendant's predecessor in title together with the mirrors, and these tenants attorned to the defendant as their landlord. As long as these tenants remained in possession during their respective unexpired terms, the defendant could not, and in fact did not, acquire possession of the mirrors. If, therefore, the proof ended here, there would be no liability on the part of the defendant.

But there was evidence to the effect that some of these tenants shortly thereafter removed from their apartments and that thereupon the defendant, through an agent, relet the said apartments to other tenants together with the mirrors in them.

Farther evidence which plaintiff desired to give upon this point was excluded by the trial judge against plaintiff’s exception. It must therefore be-assumed that, if he had been permitted, the plaintiff would have fully established the point. The proof would then have been sufficient to show that the defendant took possession of the mirrors of these particular apartments and assumed and exercised control and dominion over them to the exclusion of plaintiff’s rights, although he had notice of them, and to this extent a conversion would have been established within the authorities irrespective of the demand which was made upon the defendant.

The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide, the event.

, Gildersleeve, J., concurs.  