
    Adams v. Loomis et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    November, 1889.)
    1. Conversion—Evidence—Tenants in Common.
    In an action, for the conversion of personal property, where defendants allege that they were tenants in common with plaintiff, and that they obtained quiet and peaceable possession of the property, it is proper, the evidence as to the taking being in conflict, to submit to the jury the question whether defendants took the property without plaintiff’s consent, and with the intention of converting it to ■their own use under a claim of right, in defiance of plaintiff’s rights and interests. 8. Same—Demand—When Unnecessary.
    Plaintiff went into possession of a farm under a lease from defendants providing that the hay raised on the farm should be fed to the stock thereon, part of which was owned by defendants and part by plaintiff, and that each was to have one-half of all the crops, the oats to be divided at the end of the term. Part of defendant’s stock and some of the hay were destroyed by fire, when defendants removed the residue of their stock, and all the hay and grain not destroyed. Held that, as plaintiff had the right to the possession until the end of the'term, defendants’ taking was wrongful, and no demand was necessary to perfect plaintiff’s right of action. 8. Same—Instructions—Harmless Error.
    Where the evidence shows that plaintiff was entitled to the beneficial use of more than one-half of the undestroyed hay, it is not reversible error for the court to instruct that if plaintiff was entitled to recover at all he was entitled to one-half the value of the hay, though the lease provides that whatever hay was left at the end of the term belonged absolutely to defendants.
    
      4. Counter-Claim—What Available—Contract and Tort.
    The subject of the action being the hay and grain which defendants converted, a counter-claim for plaintiff’s breach of the conditions of the lease under which they were grown is not “connected with the subject of the action, ” within the meaning of Code Civil Proc. N. Y. § 501, subd. 1.
    Appeal from Chenango county court.
    Action by Frederick 2ÑT. Adams against Uriah Loomis and another, commenced in justice’s court. The plaintiff in his complaint alleged that on the 22d December, 1884, he was the owner and in legal possession of a quantity of hay, oats, and corn of the value of $57.75, which defendants then wrongfully took and converted to their own use. The defendants put in a general denial, and also alleged that the defendants and plaintiff were tenants in common of the property, and that defendants were equally with plaintiff entitled to the possession and control. They also alleged, as matter of offset and counter claim, damages to the amount of $1,200 for the non-performance by plaintiff of the terms and conditions of a lease given by defendants to plaintiff, under which the property in the complaint was produced, and they demanded judgment for $1,200. The plaintiff recovered before the justice a verdict for $8.80, and the defendants appealed to the county court. On a new trial, there was a verdict of $22.25 in plaintiff’s favor; and from a judgment thereon, and an order denying defendants’ motion for a new trial on the minutes, they appeal. Code Civil Proc. § 501, subd. 1, provides that the counter-claim must be connected with the subject of plaintiff’s cause of action.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      John W. Church, for appellants. George W. Ray, for respondent.
   Merwin, J.

Upon the trial of this case it appeared that on the 5th April, 1884, the defendants leased to the plaintiff, for a term commencing April 7, 1884, and ending 28th February, 1885, their farm, together with 16 cows and dairy utensils. The plaintiff was to furnish two more cows. The hay that was raised was to be fed out on the farm, and what hay was on the farm at the end of the lease was to be the property of the defendants. Each was to have one-half of all the crops, the oats to be divided at the end of the lease. There was a further provision that the hay and grain raised on the farm should be fed to the stock named, including one team. The plaintiff took possession, and, among other things, raised the hay, oats, and corn in question. On the 21st December, 1884, the barn on the premises was burned, resulting in the destruction of 13 of defendants’ cows, and 25 to 30 tons of hay. The next day the defendants went to the premises, and took away their other three cows and the hay, oats, and corn in question, being all that was left on the farm of the hay and grain that was raised. It is claimed by the defendants that the parties were, under the lease, tenants in common of the hay, oats, and corn, and that, the defendants having obtained quiet and peaceable possession, and no demand being afterwards made, the plaintiff cannot maintain an action for conversion. The circumstances under which the defendants took possession were somewhat controverted, and the court below, in substance, left it to the jury to say whether the defendants took the property without plaintiff’s consent, and with the intention of converting it to their own use, under a claim of right, in defiance of plaintiff’s rights and interests. The verdict, in effect, affirmed this proposition, and the evidence is sufficient to sustain the verdict. This proposition was as favorable to defendants as they had any right to ask. Under the lease the plaintiff was entitled to the possession until the termination of the term. The oats were not to be divided until then. The hay and grain were all tobe fed out on the place, if necessary, for the purpose of there keeping the stock. The plaintiff liad a right to have it remain there, and in his possession. The occurrence of the fire did not terminate the lease, and it was not so alleged. The taking away by defendants of their remaining cows was voluntary on their part. The plaintiff had two cows and a team that he had a right to feed there on the farm from the hay and grain that was left, and which defendants took. The defendants, therefore, in taking this property from the plaintiff without his consent, took it wrongfully, and no demand was necessary to be afterwards made by plaintiff upon defendants in order to perfect his right of action.

The court below' charged that the plaintiff, if he recovered at all, was entitled to recover one-half the value. This ruling is criticised, in view of the fact that under the lease whatever hay was left at the end of the term belonged absolutely to defendants. The defendants in their answer make no such claim, but do allege a tenancy in common of all the property. It is now rather late to change the position. Still I do not regard this of much importance; for, upon evidence presented by the defendants, it is very apparent that the use which the plaintiff was entitled to have of the hay for the feeding of his cows and team would have consumed much more than the half, the value of which he recovered. So that, if the recovery had been limited to the beneficial use the plaintiff was entitled to have, the recovery would not have been as favorable to defendants. The charge of the court, therefore, on this subject, if not correct, did not injure the defendants.

The defendants further claim that the court below erred in excluding the evidence offered by them on the subject of their counter-claim. To this it is answered that neither the justice nor the county court had any jurisdiction to try the cause of action set up as a counter-claim, by reason of the amount of the judgment demanded, being $1,200, (Code, §§ 340, 2862:) and that, therefore, it was not available as a counter-claim, (Code, § 2945;) also that, as this action was commenced before the termination of the lease, the counter-claim was not then due; also that it is not connected with the subject of the action, (Code, § 501, subd. 1.)

Considering the subject of the action as the hay and grain which the defendants converted, the counter-claim has nothing to do with that. Assuming plaintiff had not performed all the conditions of the lease, that gave the defendants no right to indemnify themselves by wrongfully taking what was left of the hay and grain. The lease provided security to the defendants in a reservation of a portion of the proceeds of the dairy. The cáse which the defendants seem to most rely on is Carpenter v. Insurance Co., 93 N. Y. 552. There the subject of the action was wood that defendant had wrongfully taken, and the counter-claim was for damages sustained by defendant in the wrongful impairment by plaintiff of the mortgage security of the defendant by the severance of the same wood from the land covered by the mortgage. That does not apply here. There the plaintiff was taking advantage of his own wrong; here it is the defendant that seeks such advantage. The court did not, I think, err in excluding evidence as to the counter-claim. Some other questions are raised, but they do not call for any special discussion. Ho error is disclosed that would call for a reversal. Judgment and order affirmed, with costs.

All concur.  