
    SAMUEL J. KNIGHT, as President, etc., Appellant v. SACKETT & WILHELMS LITHOGRAPHING COMPANY, Respondent.
    
      Motion for a new trial—Dismissal of complaint on the merits—Lithor/raphic stones, impressions on same, conversion of. ,
    The motion for a new trial was made on the minutes of the trial judge, upon the grounds specified in section 999 of the Code, but the trial had been before a judge, without a jury, by consent of parties. Section 999 applies only to jury trials, and the order appealed from must, therefore, be affirmed irrespective of the reasons for which it was made.
    The complaint was properly dismissed, because of the failure of the plaintiff to establish a title to the lithographic stones. The action being for conversion, the plaintiff was bound to establish title. The stones must be regarded as the principal, and the impressions thereon as a mere incident, and the plaintiff could not maintain conversion based upon the refusal of the defendant to deliver up the impressions and an offer to pay the value of the stones. A delivery of the impressions cannot he made without giving up the stones also, nor is a mere refusal to permit a transfer to be made of the impressions sufficient to sustain the action. Conversion would only lie upon proof of the destruction of the plaintiff’s interest in the impressions. Short of that, and under the special circumstances of this case, the plaintiff’s remedy against the defendant is in equity. For these reasons the complaint was properly dismissed; hut as the dismissal was upon plaintiff’s own showing, and without findings, it should not have been dismissed “ upon the merits,” and the judgment should be modified by striking out the words 11 upon the merits.”
    
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.
    
      Decided July 5, 1892.
    Appeal by plaintiff from a judgment dismissing the complaint, after trial of the issues by a judge without a jury, and also from an order denying plaintiff’s motion for a new trial.
    
      The facts and points in this case appear fully from the following statement and opinion of the trial judge, the points of counsel, and the opinion of the court.
    
      “ The plaintiff entered into a contract with the Hatch Lithographic Company, by which the latter was to perform services in making lithographic drawings or impressions on stone, from which, prints or colored lithographs were to be printed from time to time for the plaintiff, at agreed prices. The drawings became the property of the plaintiff, while the stones upon which the impressions were made and taken belonged to the Hatch Lithographic Company. While the stones were thus owned, the latter company executed a chattel mortgage thereon, which was foreclosed, and at the foreclosure sale the property was bought in, and eventually found its way into the hands of the defendant. The plaintiff tendered to the defendant the sum of $247.50, which it claims was the price fixed by the defendant as the value of the lithographic stones upon which the drawings were made and demanded from the defendant the delivery of the drawings, which of course included the stones upon which the impressions were made, for the one could not be delivered without the other; but the defendant refused to comply with the demand, and the plaintiff brought this action in trover as for conversion, claiming- $5,000 damages-. The complaint was dismissed upon the ground that the plaintiff had no title to the stones, hence could not maintain conversion. The present is an application for a new trial.
   McAdam, J.

“ Theplaintiff’s counsel at the trial, asked by what process his client became possessed of title to the stones, replied,c By confusion of property; ’ but the intermixture in this instance was by the consent of all the parties, so that the owners became tenants in common of the property according to their respective interests (Oowen’s Treat-., § 580), and the rule applicable where one unlawfully makes the intermixture, as illustrated by the cases referred to in § 579, supra, has no application; nor does the theory of accession of property apply, for the reason that the stones would be regarded as the principal, the impressions a mere incident, and if that rule were applied the title to all would be in the owner of the stones.

The rule is settled that neither replevin nor trover for conversion will lie by one tenant in common. of a chattel against another for taking or disposing of the chattel. The plaintiff in such an action must claim as sole owner, and must stand or fall upon that claim. Hudson v. Swan, 83 N. Y., 552.

“ The case resembles that of Dodworth v. Jones, 4 Duer, 201, in which a stereotyper who was employed to prepare stereotyped plates of a copyright ’ book, and made them out of materials belonging to himself, and with his own labor, was held entitled to retain the plates, and that he could not be divested of his legal title to the product or plates by a tender, unaccepted, of just compensation for his labor and materials. In that action the court held that the plaintiff, in order to recover, must establish a legal title to the plates, or a special property in them, with the right of actual possession at the time the action was commenced, and added: ‘ What remedies might be taken by the plaintiff to prevent a use of the plates by defendant’s firm if it should attempt to print the book it is useless to discuss.’

“ The plaintiff had a clear right of action against the Hatch Lithographic Company for any breach of its contract arising from its refusal or inability to carry it out; but it does not follow that such right of action gave to the plaintiff any title to the stones, or any right to their possession. Perhaps the plaintiff might by bill in equity have maintained a suit for the partition of the several rights of property in the stones and the impressions on them, in which the value of the stones might have been judicially established and a sale ordered, with directions to pay such value out of the proceeds, and the residue to the plaintiff, in case it had elected to permit such a sale to go on (Prentice v. Janssen, 79 N. Y., 478); or the plaintiffs, at said sale, might have purchased the property, and, by paying the' value legally fixed upon the stones, acquired title to the stones as well as the impressions; or the defendant might have been directed to deliver up the stones on payment of the value thereof as determined. The plaintiff is seemingly entitled to such relief in an appropriate suit on principles of natural right and justice. This seems to be in accord with the ruling of Foster v. Ward, L.R., Ireland, vol. 9, pages 446, 468, Chancery Division, in which a similar question was decided, as well as with the civil law, and the views of Justinian, to which the attention of the court has been called by counsel.

William O. Campbell, attorney for appellant, argued :—

I. Title to personal property cannot be divested except by the fault or with the consent of the owner. This proposition is so trite that it would seem unnecessary to discuss it. I venture, however, to cite a few authorities. After demand and refusal, trover may be maintained by the true owner against any person, even a bona fide purchaser for value. There can be no doubt but that the owner may follow the goods. Barret v. Warren, 3 Hill, 348. In further support of this proposition it will be sufficient to cite the cases where it has been discussed and maintained. Hall v. Robertson, 2 N. Y., 293; Eli v. Ehle, 3 Ib., 506 ; Wooster v. Sherwood, 25 Ib., 278 (citing Brower v. Peabody, 13 Ib., 121;) Saltus v. Everett, 20 Wend., 267; 2 Kent’s Com., 621; Boyce v. Brockway, 31 N. Y., 490 ; Bassett v. Spofford, 45 Ib., 387 ; Barnard v. Campbell, 55 Ib., 456; Gillett v. Roberts, 57 Ib., 34; Everett v. Coffin, 6 Wend., 603; Williams v. Merle, 11 Ib., 80; Hoffman v. Carow, 22 Ib., 285-294; Prescott v. De Forest, 16 Johns., 159.

“ Upon the case as presented, and in the absence of proof of usage of the trade in regard to such matters, which might or might not have been available, the complaint was properly dismissed, and the motion for a new trial must be denied.”

II. Knight, the plaintiff, had title to the pictures on the “ key-stones ” or “ mother-stones.” The Hatch Lithographic Co. were bailees only. This proposition can be maintained by the principles of the common law. A very able discussion of almost the precise question involved here will be found in the action of Foster v. Ward, L. R., Ireland, volume 9, pp. 446 et seq. That ■was a case, as will be seen from the report, where lithographic stones had been prepared by the firm of Marcus Ward & Co., for Mr. Foster, under an arrangement almost identical with the arrangement between plaintiff and the Hatch Lithographic Company. It is sufficient to say that in that case the court awarded the plaintiff the possession of the stones with the drawings on them, and laid down the principle that the only thing necessary for the plaintiff to do was to pay the defendant for the value of the lithographic stone itself. It will be seen by the pleadings that it is admitted in this case that Mr. Knight did offer the Hatch Lithographic Company the value of the stones as fixed by themselves. Mr. Knight swears that the pictures were to remain his. This is not contradicted.

in. The plaintiff, having a property right in the pictures or drawings on the stones, acquired the right to the stones themselves by paying to the defendant the value of the stones. It is admitted that Mr. Knight tendered the value of the stones, and consequently, for the purposes of this discussion, it must be assumed that he has paid for them, there being no objection to the tender. I have been unable to find in this State any case which would exactly support the proposition now under consideration, but there is no lack of authority in the civil law and the Code Napoleon. It is certainly a monstrous doctrine to maintain that this plaintiff must lose nearly two thousand dollars’ worth of drawings or pictures, in the highest degree useful to him, simply because defendant claims title to and will not sell (though tender has been made), $247.50 worth of stones on which the pictures have been placed. I assume that the court will be swift to find relief for him, even if it must go to the civil law for it. Inst. Justinian (Sander’s Trans.), Lib. II., tit. I., § 25: When materials belonging to different persons were mixed together, or one person bestowed his labor on the materials of another, although only one person might be the owner of the product, yet he did not become so at the expense of others. He was obliged to pay those whose materials or labor had been employed the value of their respective materials or labor and was liable to a personal action for the enforcement of the payment. Inst. Justinian (Sander’s Trans.), Lib. II., tit. L, § 34; Gaius Institute, II., § 77 : If a person has painted on the tablet of another, some think that the tablet accedes to the picture ; others, that the picture of whatever quality it may be accedes to the tablet. It seems to us the better opinion that the tablet should accede to the picture; for it is ridiculous that a painting of Appelles or Parrhasius should be but the accessory of a thoroughly worthless tablet. But if the owner of the tablet is in possession of the picture, the painter, should he claim it from him, but refuse to pay the value of the tablet, may be repelled by an exception of dolus malus * * * and vice versa. * * *

If the tablet has been stolen, whether by the painter or any one else, the owner of the tablet may bring an action of theft.” Code Napoleon, Book 2, § II., Art. 565. The right of accession having for its object two things movable which belong to different masters is entirely subordinate to the principles of natural equity. The following rules shall serve as examples to guide the judge in determining cases not provided for according to the peculiar circumstances. Art. 566. When two. objects appertaining to different masters, which have been united in such a manner as to form one whole, are nevertheless separable, so that one can subsist without the other, the whole belongs to the master of that which forms the principal part on condition of paying to the other the value of the one which ivas united to it. Art. 567. That is to be deemed the principal part to which the other was only united for the use, ornament or completion of the first. Art. 569. If, of two objects united in order to form one whole, the one cannot be regarded as accessory to the other, that shall be deemed the principal which is most considerable in value or in size if the value of both is nearly equal. Art. 570. If an artisan or any person whatsoever has employed a material which did not belong to him, in order to form something of a new description whether the material can or cannot be restored to its original shape, the proprietor thereof has the right to claim the thing which has been formed from it, on paying the price of the workmanship. Art. 571. If, however, the workmanship were so important that it surpassed by much the value of the material employed, the labor shall then be deemed the principal part, and the artificer shall have the right to retain the thing wrought on paying the price of the material to the proprietor. Art. 572. Where a person has made use of materials which partly belong to him and partly do not, in order to form an object of a new description, without having destroyed any of the materials, but in such a way that they cannot be separated -without inconvenience, the object is common to both proprietors, etc.

IY. One tenant in common can maintain trover as for conversion against his co-tenant. The learned justice says in his opinion, that the owners of the drawings and the owners of the stones respectively become tenants in common because of the intermixture of properties by consent, and he continues : The rule is settled that neither replevin nor trover for conversion will lie by one tenant in common of a chattel against another for taking or disposing of the chattel. The plaintiff in such action must claim as sole owner and must stand or fall upon that claim.” The case of Hudson v. Swan, 83 N. Y., 552, is cited to support the foregoing statement. If the Hatch Lithographic Company and the plaintiff were tenants in common, then the defendant, The Sackett and Wilhelms Lithographic Company, upon the purchase of the joint property, became a tenant in common with the plaintiff. This is decided in the case of Fiero v. Betts, 22 Barb., 633, which declares that a purchaser at a judicial sale of the interest of one tenant in common becomes a co-tenant with the rightful owner of the other share. The sale does not destroy the tenancy in common. Assuming for the sake of argument that the Hatch Lithographic Company and the plaintiff in this action became tenants in common of the lithographic stones with the drawings thereon, and that by purchasing the stones the defendant became also a tenant in common with plaintiff, it is respectfully submitted that there is no such rule in law as that laid down in the opinion and quoted above. The case of Hudson v. Swan, supra, which is cited in support of that theory, does not in fact decide any such thing. An examination of the case discloses that it was an action of replevin brought to recover the possession of a horse, and the plaintiff set up sole ownership, when in fact he owned but one-half of the horse. All that the opinion of the Court of Appeals decides is that he must stand or fall upon the claim as pleaded, which was that of sole and exclusive ownership. The opinion in that case does hold that one ' tenant in common cannot maintain replevin against a co-tenant for taking a chattel merely, but it does not say that he. might not maintain replevin if a proper foundation were laid for the action. There can be no question but that the action can under proper circumstances be maintained by one tenant in common against his co-tenant, and it is to a discussion of this question that I wish to invite the careful attention of the court. An examination of the authorities is very instructive and interesting. Little-ton, 1 Inst., 199, b., § 323, illustrates the rule in his time, when he says: u If two be possessed of chattels personal in common by diverse titles, as of a horse, an ox, a cow, if the one takes the whole to himself out of the possession of the other, the other hath no other remedy but to take this from him who hath done the wrong to occupy in common when he can see his time.” And Coke, commenting on that passage, approves of it (1 Inst. 200, a.). Beginning with the statement of the law as just laid down, there will be found to have been an astonishing advance since that time. In this State it seems to have been formerly the rule that one tenant in common could not maintain trover against his co-tenant for merely dispossessing him, or excluding him from the enjoyment of the chattel, although he might do so if the chattel were destroyed or sold. This principle is upheld in Fiero v. Betts, 22 Barb., 633; Hyde v. Stone, 7 Wend., 354; S. C., 9 Cow., 230 ; Gilbert v. Dickerson, 7 Wend., 449 ; Mumford v. McKay, 8 Ib., 442 ; Farr v. Smith, 9 Ib., 338 ; White v. Osborne, 21 Ib., 72. I have merely cited these cases with a general statement of what they determine, because later cases, some in the Court of Appeals, have reaffirmed the doctrine with many important additions. In the case of Van Doren v. Balty, 11 Hun, 239, the defendant Baity had bought a harness and buggy at mortgage sale. Van Doren, the plaintiff, was present at the sale, and forbade the same in the hearing of Baity so far as his one-half of the buggy was concerned. Baity nevertheless bid in the property and afterwards refused to allow Van Doren to use the chattel and claimed exclusive ownership of it. We find the court enlarging upon the principle laid down in former eases, quoted above, as follows : “ A purchaser of the interest of one tenant in common at a mortgage sale of a chattel with notice of the tenancy becomes equally a wrongdoer with the mortgagor. The sale is a conversion. The purchase and assertion of exclusive ownership is a conversion.” The court cites wibh approval 2 Hillard on Torts, 246; Hyde v. Noble, 13 N. H., 494; Parker v. Middlebrook, 24 Conn., 207. In Osborne v. Schenck, 83 N. Y., 201, we reach the full fruition of our hope as we wander through the long list of cases and find this broad principle laid down : The possession and use of one tenant in common of a chattel, though it prevents the possession and use of the other, can furnish no ground for action, since it is rightful and rests on legal authority. But it also follows that if that possession develops into a destruction of the property or of the interest of the co-tenant, or into such hostile appropriation of it as to exclude the possibility of beneficial enjoyment by him, * * '* then a conversion is established.”

Y. The plaintiff having a title to the drawings, the defendant was guilty of a conversion when it refused to allow a transfer to be taken. And it matters not whether we treat the defendant as tenant in common or as bailee. The taking of a transfer from a lithographic drawing is done by the use of transfer paper, and it would have been a qualified and a somewhat unsatisfactory exercise of plaintiff’s right of property to have been compelled to accept a transfer in place of the drawings themselves, but he offered to take the transfer, and he thereby placed the defendant in the wrong. It was a demand, not that the defendant should do something, but that the defendant should allow the plaintiff, at his own expense, to possess himself of his property. All the authorities quoted to sustain Point IY. apply with greater force to this point.

Smith, Bowman & Close, attorneys, and Artemas B. Smith of counsel, for respondent, argued :—

I. Appellant had no right to the use or possession of the stones. This proposition is true as between the appellant and the Hatch Lithographic Company. But as against the respondent, the appellant has absolutely no right or claim whatever. There is not a scintilla of evidence that the respondent acquired the stones with a knowledge or notice of plaintiff’s claim herein, or of its agreement with the Hatch Lithographic Company. Besides such claim was not made in the complaint or at the trial. Such right to an immediate possession, is essential to the appellant’s right to recover for the conversion. See opinion of the trial judge and'authorities cited therein ; McConihe v. N. Y. & E. R. R. Co., 20 N. Y., 495, 497; Gregory v. Striker, 2 Denio, 629, and cases cited. On this subject the decision of this court in Dodworth v. Jones, 4 Duer, 201, cited by the judge below, seems clearly to determine this case. We cannot find that that case has ever been questioned or criticised in the many years since it was decided. On the contrary, the doctrine is sustained by other authorities. On the trial the learned counsel for the appellant claimed as a controlling precedent the case of Foster v. Ward, 9 Law Reports, Ireland, pp. 446, 468. A brief examination of that case will show that it is essentially distinguishable from this case. The contracts in the two cases were entirely dissimilar. In this case the appellant disclaims. ownership of the stones. It merely paid for the work of making the drawings or engravings. In Foster v. Ward, Mr. Foster paid for both the work and the materials supplied, and thus became the owner of the plates produced (p. 469). A further distinction is, that Ward & Company, the defendants in the other case, were the parties with whom Foster had made his contract. As that suit was in Chancery, the court had ample power to determine the rights of the parties. This case is an action at law, and the Hatch Lithographic Company is not before this court. The appellant’s claim that its right to the use or possession of the said stones was acquired by it as an incident to its said arrangement with the Hatch Lithographic Company and its copyrights in the designs engraved upon the stones, is without foundation in law. As above pointed out, the appellant only paid for the work of making the drawings. It made no claim to the ownership of the stones. It never claimed the possession thereof until after the respondent had acquired its interest and possession. Alike untenable is the appellant’s claim to the use of the stones as an accession to its copyrights. The copyrights of the designs or pictures engraved on the stones were separate and distinct properties from the stones, and the sale and delivery of the latter to the respondent did not carry with them any of the appellant’s rights under its copyrights. Stevens v. Gladding, 17 How. U. S., 447, 452.

II. Appellant failed to show that any. of its rights had been violated. As above pointed out, the appellant’s rights rested upon an agreement whereby certain of its copyrighted designs were put upon stones of the Hatch Lithographic Company for its exclusive use. This arrangement was- not for a definite period, and, therefore, either party was at liberty to terminate it at pleasure. Apparently the Hatch Lithographic Company elected to terminate the arrangement when it suffered the stones to be sold under foreclosure proceedings. The appellant makes no complaint of any infringement of his rights in the designs under the copyrights. But if such complaint were made herein it could not avail the appellant, because this court has not jurisdiction of the subject matter of copyrights. Potter v. McPherson, 21 Hun, 559, 562. Moreover, the transfer of said stones could in no way affect the plaintiff’s rights under his copyrights. Stevens v. Gladding, supra.

By the Court.—Freedman, P. J.

The motion for new trial was made on the minutes of the trial judge upon the grounds specified in section 999 of the Code of Civil Procedure. But the trial had been by a judge without a jury by consent of the parties. The section referred to in express language applies only to jury trials. The order appealed from must, therefore, be affirmed, irrespective of the reasons for which it was made.

Upon the appeal from the judgment it must be held that the complaint was properly dismissed for the failure of the plaintiff to establish title to the stones. The action being for conversion, the plaintiff was bound to establish title. The stones must be regarded as the principal and the impressions as a mere incident. The plaintiff could not acquire title to the stones by a mere offer to pay their value which was refused. The contract of the plaintiff was with the Hatch Lithographic Company, and the latter, and not the defendant, agreed to put upon certain stones certain drawings of the plaintiff and that the impressions were to be the property of the plaintiff and were to be used exclusively for the benefit of the plaintiff. But the Hatch Lithographic Company remained the absolute owner of the stones and was lawfully in the possession of them. It was conceded by the plaintiff that after the making of said contract the Hatch Lithographic Company, while so in possession, mortgaged the stones, that the mortgage was foreclosed, that on the sale the stones were purchased by Fuchs and Lang, and that the defendant purchased from them. It nowhere appears that the defendant-company, at the time it acquired title to the stones, had any knowledge or notice of the arrangement between the plaintiff and the Hatch Lithographic Company.

Under these circumstances conversion cannot be maintained by the plaintiff against the defendant based upon a mere refusal to deliver up the impressions, because a delivery of them cannot be made without giving up the stones. Nor is a mere refusal to permit a transfer to be made sufficient to sustain the action. Conversion would only lie, if at all, upon proof of the destruction of plaintiff’s interest in the impressions. Short of that, and under the special circumstances of this case, plaintiff’s remedy against the defendant is in equity. Moreover, the plaintiff clearly has a good cause of action against the Hatch Lithographic Company for breach of contract.

The authorities cited by plaintiff’s counsel have been duly examined, but they do not call for reversal. However true it may be as a general rule of our law of personal property, that no man can be divested of his property without his own consent, and that consequently even a bona fide purchaser from a person in the possession of property, who has no title to it and no authority whatever from the owner to sell or dispose of it, cannot acquire any title against the true proprietor, there are in fact numerous exceptions to the rule. Thus the law will in many cases imply an authority from the owner to sell, and where the owner has conferred an apparent right of property upon the vendor, or an apparent right of disposal, and has furnished the vendor with the external indicia of such right, and the vendor has sold the goods and delivered the possession thereof, the law will protect a purchaser who has acquired the property for a fair and valuable consideration, in the usual course of trade, and without any notice of any conflicting claim, or of suspicious circumstances calculated to awaken inquiry or to put him on his guard, although the goods were in fact obtained by the vendor from the true owner fraudulently. In the case at bar the difficulty with the claim of plaintiff’s company is that the said company saw fit to expend its money for impressions upon stones under a contract with a third party without acquiring title, or the right of immediate possession, to the stones themselves. .

For the reasons stated the complaint was properly dismissed, but as the dismissal was upon plaintiff’s own showing, and without making any findings, it should not have been upon the merits.

The judgment should therefore be modified by striking out the words “ upon the merits,” and as thus modified affirmed.

The affirmance of the judgment as modified should be without costs upon this appeal, but the respondent may have $10 costs and disbursements upon the affirmance of the order.

Dugro and Gildersleeve, JJ., concurred.  