
    Matthews v. Smith’s Express Co.
    (County Court — Rockland County,
    November, 1892.)
    Plaintiff, an expressman, by direction of the owner, took possession of household goods, at her New York residence, for shipment and removal to a residence in the country. After he had removed a portion of the goods from the cars to the residence, the employees of the defendant, a rival concern, took possession of the remainder of the goods, and removed the same, against the remonstrance and objection of the plaintiff, and after notification by him that the same were in his possession. In an action to recover damages for trespass, the defendant was held liable for nominal damages and costs. Held, that the judgment should be affirmed.
    Appeal by defendant from a judgment in plaintiff’s favor, rendered by a justice of the peace after a trial. The opinion states-the case.
    
      Arthur S. Tompkins, for plaintiff (respondent).
    
      Snider & Hopper, for defendant (appellant).
   Weiant, J.

This is an action for trespass to personal property. The parties, both plaintiff and defendant, were engaged in the express, storage, and carting business in Rockland and New York counties, and elsewhere, each having his or its office and principal place of business in Nyack, in this county.

On or about May 24,1892, the plaintiff, through the request or direction in writing, of one Mrs. Smith, took possession of the personal property in question, consisting chiefly of household goods, at the residence of Mrs. Smith, in New York city, to have the same shipped, transported and delivered for her to her place of residence at Nyack.

The plaintiff caused the goods to be taken from the residence of Mrs. Smith, in New York city, carted to the office of the Northern railroad of New Jersey, .and over that road shipped to Nyack.

On the arrival of the goods at Nyack, the plaintiff, in the afternoon of the same day, proceeded to remove the goods from the cars to take them to the residence of Mrs. Smith. After he had removed a portion of them, the defendant’s employees took possession of the remainder of the goods, and removed the same away, against the remonstrance and object tion of the plaintiff, and after notification by him that the same were in his possession. The facts are undisputed.

The plaintiff then brought this action for damages, and recovered a judgment in the Justice’s Court for nominal damages and costs. From this judgment the defendant appeals. The judgment must be affirmed. The right of the plaintiff to maintain an action for trespass is clear.

An action of trespass for an injury to personal property, lies not merely in those cases in which personal chattels are taken out of the actual possession of the owner, but also for any wrongful and forcible injury which may be done to them while in his possession, or in the possession of another.

Proof of actual possession of the chattel by the plaintiff at the time when the injury was done to it, will be sufficient in all cases to maintain an action against a mere wrongdoer, who is not the real owner of the chattel. Aiken v. Buck, 1 Wend. 466.

Bare possession alone of a chattel is sufficient title or right to maintain the action against a wrongdoer. Hoyt v. Gelston, 13 Johns. 141, 561; Sickles v. Gould, 51 How. 22; 2 Wait’s Law & Prac. (5th ed.) 452, and cases there cited.

And even where the plaintiff came into possession of the property wrongfully, he may, nevertheless, maintain trespass against a mere wrongdoer who divests him of his possession. Hurd v. West, 7 Cow. 752; Hoyt v. Van Alstyne 15 Barb. 568-572.

A mere finder of a chattel may maintain the action against a wrongdoer who has no title at all. Even a gratuitous bailee may maintain trespass against a wrongdoer. Rooth v. Wilson, 1 Barn. & Ald. 59.

A factor, commission merchant, or consignee of goods, has such an interest as will maintain the action. Fowler v. Down, 1 Bosw. & Pul. 45.

Where the plaintiff is in actual possession of the property, when .the defendant, against his will, forcibly seizes and removes it, that is enough, without any other evidence of title to maintain the action, except against the true owner, or one connecting himself with the true owner. Wheeler v. Lawson, 103 N. Y. 40-45, citing Stowell v. Otis, 71 N. Y. 36.

Such being the law., it is unnecessary for me in the disposition of this appeal to determine the question raised by the appellant’s counsel as to whether or not the plaintiff was a, common carrier, and as such, having a lien upon the goods. The right of action does not rest upon his having a lien, as between himself and another other than the owner, or some one claiming under him, and the defendant, neither by his answer nor by evidence, has undertaken to justify under any authority from the owner, Mrs. Smith.

The judgment is affirmed, with costs.  