#### Charles J. Smith, Respondent, *v.*Albert Hartog, Appellant.

(Supreme Court, Appellate Term,

April, 1898.)

Conversion — Demand — Refusal, by requiring a receipt — Rejected tender of chattel, made after the conversion had occurred — Mitigation of damages.

In an action for a conversion it appeared that the defendant, the receiver of a firm, took possession of the plaintiff’s horse because his son, who was a partner in the firm, told the defendant that it was firm property, The son afterwards told the defendant that the horse belonged to the plaintiff. The defendant, upon demand made, offered to surrender the horse to the plaintiff ifj he ¡would sign a receipt for it, which stated that it was claimed by the plaintiff as his property. The plaintiff refused to sign. The defendant'subsequently tendered the horse but the plaintiff declined to accept.

Held, that the unauthorized dominion which the defendant exercised over the horse, however slight in extent, constituted a conversion. That the demand, necessarily made where possession had been' lawfully acquired, was sufficiently refused by the defendant’s" insistence upon a receipt as a condition of delivering to .the plaintiff his own property. That damages could not be mitigated by a tender, made after a conversion, which was not accepted.

Appeal from a judgment of the Sixth District Court, in favor of the plaintiff.

Weekes Brothers, for appellant.

B. L. Brandner, for respondent.

Gildersleeve, J.

On June 16, 1897, plaintiff was the owner óf a certain horse, which he had loaned to the firm of Smith & Woolsey, the senior member of which firm, Malcolm Smith, was the son of plaintiff. On June 14, 1897, the defendant was appointed receiver of said firm, and on or before June 16th, duly qualified as such. On said 16th of June, defendant, with said Malcolm Smith and his lawyer, went to the place of business of said firm to take possession of the assets thereof. In front of said premises were four horses, which said Malcolm Smith pointed out *354as the property of the firm. Defendant thereupon .took possession of said hors'es, and placed them in a stable. One of these horses belonged to the plaintiff, who, as we have said, had loaned it to the firm some time previous to the day in question. On July 7th, the plaintiff made a demand for the return of his horse. Defendant knew that the horse had belonged to plaintiff, and his •only reason for supposing that the firm.had acquired ownership was the fact that it was found among other horses belonging to the firm, and that Malcolm Smith had pointed out all the horses together as being the.property of the firm. Upon plaintiff’s demand, inquiries were made of Malcolm Smith, who acknowledged that the horse belonged to plaintiff, and told defendant to deliver it to him.- Thereafter, defendant offered to return the horse into the .pdssession of plaintiff, if plaintiff Would sign the following receipt, viz.: “Deceived from Albert Hartog, receiver, one gray horse, claimed by me as my property,” This receipt plaintiff refused to sign, and defendant kept the horse. Plaintiff, in Uovember, 1897, brought this action for a conversion, and'the justice fixed the value of the horse upon sufficient evidence, at $50, and gave judgment for the plaintiff.

It is well settled that any unauthorized exercise of dominion over the property of another is a conversion, without regard to the intent with which the act is done; and if the rightful owner has been -deprived of his property by some unauthorized act of another assuming dominion or control over it, the-latter is liable for a conversion. See Roe v. Campbell, 40 Hun, 49. There can be, therefore, no doubt that the defendant has been guilty of a conversion, under the state of facts above set forth, which have been ■established by defendant’s own testimony. It must be held, however, that, under the circumstances above disclosed, the property name lawfully into the defendant’s possession; and, therefore, there must have been a demand and -refusal in order to sustain an action for conversion. See Bates v. Conkling, 10 Wend. 389; Hall v. Robinson, *2*N. Y. 293; Sluyter v. Williams, 37 How. Pr. 109; Spoor v. Newell, 3 Hill, 307. Of the demand there is no question, but appellant claims that the evidence will not -warrant a finding that there was a refusal, since defendant tendered the horse back, on condition that plaintiff' signed a receipt; but, upon plaintiff’s refusal tó do so, defendant kept the horse. We do not think that plaintiff was under any obligation to sign this receipt, in order to recover his property. The rule is that there must be an *355absolute denial of the plaintiff’s right, or the qualification or excuse must be unreasonable, or made in bad faith. See Monnot v. Ibert, 33 Barb. 26. It seems to us that defendant’s excuse for not delivering the horse, *i.*6., the refusal of the plaintiff to sign the receipt, was entirely unreasonable and insufficient. As we have above stated, the only reason for the defendant’s supposing the horse to have belonged to the firm was the fact that Malcolm Smith had given him to so understand; and yet, although the same Malcolm Smith told him, upon the plaintiff’s making his demand, that the horse did not belong to the firm, but did belong to the plaintiff, and although he himself knew that the horse had belonged to the plaintiff, still he refused to give the horse up, unless the plaintiff signed a receipt to suit him. Had he wished to protect himself, he could have delivered the horse in the presence of witnesses. What plaintiff’s reason for this refusal to sign the receipt was, does not appear; indeed, plaintiff makes no reference to any such demand for a receipt, although he does not specifically deny defendant’s allegation in reference thereto. Plaintiff simply swears that defendant promised to return the horse, but did not do so; which would be evidence of a conversion, even without a demand and refusal. See Durell v. Mosher, 8 Johns. 445. It must be held that the fact of the demand and refusal is fully established, and defendant has been guilty of a conversion, and is liable therefor.

There is another point, which may, perhaps, merit notice, since it has been referred to by counsel; although it does not seem to have much importance in view of the facts established by the evidence in the case at bar. If wie assume from the testimony, which is not very clear as to dates, that defendant, when plaintiff made his demand and Malcolm told him to deliver the horse, at first refused absolutely to accede to the plaintiff’s demand, but that some time afterwards, upon reconsidering the matter, or, in his own words, “ rather than have any dispute about the horse,” sent the horse to plaintiff, and made a tender of the same, and that plaintiff’s refusal to sign the receipt amounted to a refusal to accept the horse, still the defendant would be liable. In an action for the conversion of personal property, the right of the plaintiff to recover the full value of the property is not affected by proof of an unaccepted tender of the property, made by the defendant, after the conversion, and before the commencement of the action. See Carpenter v. Manhattan Life Ins. Co., 22 Hun, 47. In an action for conversion, the defendant can only claim a mitigation *356of damages, because of a return of the property, where the owner has accepted its return, or has assumed dominion over it as owner. See People v. Bank of North America, 75 N. Y. 549. Upon the assumption of facts, here indicated, the conversion would have been complete, upon defendant’s refusal to comply with plaintiff’s demand. See Carpenter v. Manhattan Life Ins. Co., *supra.*

Appellant contests the value put upon the horse by the trial justice, but, as we have already indicated, we think the evidence justifies his finding in this respect.

For the reasons above stated, the judgment, so far as assailed on this appeal,, should be affirmed, with costs.

Beekman, P. J., and Gieoerich, J., concur.

Judgment affirmed, with costs.