#### John O. Heald, Respondent, *against*Robert W. Macgowan, Appellant.

(Decided May 6th, 1889.)

A creditor having possession of certain personal property of his debtors, after • they had made an assignment for benefit of creditors, and with notice thereof, brought an action against them, obtained judgment by default, and caused the sheriff to levy upon and make sale of the property for a trifling sum to a person in his employ, through whom it was afterwards transferred to others. *Held,*that an action for conversion might be maintained for such wrongful disposal of the property, independent of a demand and refusal.

In an action for the conversion of electrotype plates, on the question of their value at the time of the conversion, as the measure-of damages, proof of their cost, and the cost of replacing them, and of their value to plaintiff for a particular use, is admissible, there being no market value.

Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial.

The action was brought to recover for the conversion of *234certain electrotype plates. At the trial it appeared that, in and prior to the year 1885, the firm of G. H. Gardner & Co., composed of G . H. Gardner and David Daggett, carried on business in New York as export commission merchants. To advertise their business the firm undertook the publication and distribution in foreign countries of an illustrated catalogue of American manufacturers with descriptions and price-lists in several languages. The firm expected profits, not only from the advertising of their business, but also from the fact that the American manufacturers and dealers, whose goods were advertised in the book, had agreed to pay for this advertising by allowing the firm large deductions from the bills of goods which the firm should subsequently buy of them for export, and had entered into written contracts to that effect. The catalogue was issued in two volumes. The plates for the first volume were made by defendant, and an edition was published and distributed, and defendant was paid for his work thereon. The second volume was to be issued in parts, and when but half issued, the firm made an assignment to plaintiff for the benefit of creditors. Such assignment was executed by Daggett in the absence abroad of Gardner. ' Subsequently to such assignment, defendant brought an action on account of work done on the plates of the second volume, and recovered judgment by default. The plates for both volumes being in his possession at that -time, he caused them to be levied upon under his judgment and sold to his book-keeper for a nominal sum ; and through such book-keeper he subsequently sold the plates to Arkell & Douglass, who used them in a publication similar to the one issued by Gardner & Co. Such levy upon and sale of the plates of the first volume, for the debt contracted for work on the second volume, constituted the alleged conversion for which this action was brought. On the question of damages, the court admitted evidence of the use to which the plates might have been put by plaintiff or other persons, the cost of the plates, and the cost of reproducing them. The jury found a verdict for plaintiff, allowing as damages substantially the cost of reproducing *235the plates. Defendant made a motion for a new trial, which was denied. From the judgment and the order denying his motion for a new trial, defendant appealed. •

*King &*Clement, for appellant.

*Henry P.*Starbuck, for respondent.

Per Curiam.

[Present, Allen and Bookstaver, JJ.]— This is an action for the conversion of certain stereotype plates, brought by the plaintiff as assignee of G. H. Gardner & Co. under a general assignment for the benefit of creditors.

We are of opinion that no error in the trial of the case is shown by the exceptions. The validity of the assignment, for want of sufficient legal authority in Mr. Daggett, one of the partners of G. H. Gardner & Co., to execute it, and the rulings of the court admitting and excluding evidence as to the value of the property, and in the charge and refusal to charge in respect to such value, are the points raised by the exceptions in the case.

The first matter assigned as error is that the court erred in refusing to dismiss the complaint or direct a verdict on the ground of the invalidity of the assignment, for the reason that it was executed by Mr. Daggett alone, and was not sufficiently authorized by his partner, Mr. Gardner. As to this it is only necessary to say that the question has been passed upon by the General Term of the Supreme Court, in the case of *Klumpp*v. *Gardner*(15 N. Y. St. Rep. 100), and this assignment has been held to have been authorized by the letter of the absent partner and to be valid; and that this decision has since been affirmed by the Court of Appeals (114 N. Y. 153)

There can be no doubt of the correctness of the ruling in refusing to dismiss upon the ground that the property was not in the defendant’s possession or under his control at the time it was demanded of him; in view of the evidence in the case that in October, 1885, about two months after the assignment, and with notice thereof, the defendant brought an action against the assignors and obtained a judgment by *236default in the City Court, and caused the sheriff to levy upon and make sale of the plates to his book-keeper for a trifling sum, through whom he subsequently transferred them to Arkell *&*Douglass. There being evidence in the case that the defendant had wrongfully disposed of the .plates, it would not have been proper for the court to take the case from the jury upon this ground. The conversion consisted of this assertion of title to the plates and the unlawful disposition of them, and did not depend upon the demand and refusal.

There was no error committed in excluding the account. The account produced was claimed to be the ledger account of Gardner *&*Co., with the defendant. It was not shown that it had ever been rendered to the plaintiff’s assignors in the course of dealings between them and the defendant, and it was offered without any effort to furnish the due preliminary proof. The defendant’s books would have been competent evidence, but for the failure to comply with the requirements of the law as to the admissibility of books of account in evidence. Books containing entries made by those whose duty it was to make them in the usual course of business, are competent when other requisites are sufficiently established. The defendant sought to put his accounts in-evidence without complying with the rules governing their admission.

The rulings of the court in reference to the evidence of value are not open to objection, nor is any part of the charge as to the measure of damages. The proper rule of damages was prescribed by the judge, namely, the value of the property at the time of the conversion ; in estimating that value, proof of the cost of the plates, and the cost of replacing them, and that the plates had a use which was a valuable one, and all proof in reference to the usefulness of the plates to the plaintiff, was material and relevant, and was properly admitted. These plates would doubtless be of trifling value to many, for they had no market value. The actual value to one who owns and has uses for them is the just rule of damages, in an action against him who converts them to his own use.

*237We think the case was properly and carefully submitted to the jury, and do not think that the verdict should be disturbed.

Judgment and order affirmed, with costs.*

*

 The judgment entered on this decision was affirmed on appeal to the Court of Appeals, November 26th, 1889 (see 117 N. Y. 613).