
    Clarinda F. Killick, Resp’t, v. James H. Hooker, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Conversion—Proof of.
    In an action for conversion of a cow, plaintiffs evidence showed that she owned and was in possession of the cow, and defendant took it from her possession. Defendant’s evidence showed that he took a chattel mortgage from plaintiff’s husband for rent, and sold the cow under claim that it was covered by said mortgage. There was no pretence that plaintiff signed the mortgage, nor that the cow was included in it with her knowledge or consent, nor that she was present when it was sold. Held, that while plaintiff’s evidence alone was not sufficient to establish a conversion, the necessary proof was furnished by the evidence given on defendant's part, and that plaintiff was entitled to recover,
    , Appeal from a judgment of the county court of Monroe county affirming a judgment of a justice’s court.
    
      Q. Van Voorhis, for app’lt; P. McIntyre, for resp’t.
   Dwight, P. J.

The action was for the wrongful conversion of a cow. The return is extremely meagre in the details of the testimony, but the undisputed evidence on the part of the plaintiff shows that before the commencement of the action she owned and was in possession of the cow, of the value of thirty-five dollars, and that the defendant took it from her possession. This was evidently not enough to establish a wrongful conversion of the property, because it was consistent with the theory that the defendant had bought the cow of the plaintiff, or taken it on a contract of bailment, with her consent; and if the defendant had suffered the case to stand there, a judgment for the plaintiff could not have been sustained. But without moving for a nonsuit he went on to give evidence in his own behalf. This evidence is very briefly returned, but it plainly indicates that he had rented his farm to the plaintiff’s husband the spring before, had required security for the rent, had taken a chattel mortgage from Killick as such security and had sold-the cow in question under the claim that she was covered by the chattel mortgage. There is no pre tence that the plaintiff signed the chattel mortgage, nor any evidence that the cow was included in it with her knowledge or consent, and the plaintiff testifies that she forbade the defendant to put that cow in the mortgage. Here there was an attempted justification of the taking which failed to justify, but, on the contrary, tended to show a wrongful conversion of the property, by a sale on a chattel mortgage which either did not cóver the property in question, or did so without the consent of the plaintiff. Neither was there any evidence that the plaintiff was present at the sale or knew of it, so that it cannot be contended that she in any manner waived her right to reclaim the property or to complain of its conversion.

Making due allowance for informality of proof in an action tried by a justice of the peace without the aid of counsel learned in the law, the plaintiff’s cause of action seems to have been reasonably established, and the judgment should be affirmed.

Judgment affirmed, with costs.

Macomber and Lewis, JJ., concur.  