#### Hugh O’Neill, Respondent, *v.*Matthew C. Patterson, Appellant.

(Supreme Court, Appellate Term,

January, 1899.)

Conversion — Violation of terms of bill of sale — Measure of damages.

Where a vendee agrees, by a bill of sale, with a vendor not to dispose of any of the articles sold except by its consent, a subsequent purchaser from the vendee, who does not buy in good faith, acquires no title, although the bill of sale was never recorded in the register’s office of the county where the vendee resided, when he executed the instrument. The measure of damages for the conversion of household furniture, in part perishable, is its value at the time of the conversion, and its value, when new, affords no proper basis for a recovery.

Appeal by the defendant from a judgment of the Municipal Court of, the city of New York, borough of Manhattan, eighth district, in favor of the plaintiff for the sum of $442.90, after a trial had before the court, without a jury. The facts, so far as material, are stated in the opinion.

*4Elmer E. Cooley, for appellant.

George C. Coffin, for respondent.

Giegerich, J.

This action was brought to recover $442.90 as damages for the conversion of personal property. The plaintiff, doing business as H. O’Neill & Company, at Sixth avenue and Twentieth street, in the borough of Manhattan, sold to one C. A. Blohm household furniture of the value of $696.69. At the time of the sale, Blohm signed and delivered the following, writing:

> “New York, *November*10th, 1898.

> “ This is to certify that Messrs. 'H. O’Neill *& Go.,*of 6th avenue and 20th street, have this day sold and charged to Mir. C. A. Blohm, of 27 West 64th street, New York, miscellaneous goods and furnishings for flats 25, 27, 29 West 64th street, New York city, to the amount of six hundred and thirty-six and 48-100 dollars ($636.48) net, with the understanding that the one-half of "the amount is to be paid within thirty days from date and the balance, one-half to be paid within sixty days from date of sale.

> “ This instrument will serve as a bill of sale for these goods until the entire amount is paid. Mr. Blohm further agrees not to dispose of any of the articles without consent of H. O'Neill *&*Co.

> “ (Signed.) Chas. A. Blohm,

> H. O'Neill *&*Co., per I. C. Brown, “ (Witness.) J. M. Ochiltree.”

The goods were delivered to Blohm at the premises above mentioned, and subsequently he paid $253.79 on account, leaving a balance of $382.69 unpaid. Upon failure to make further payments in pursuance to the terms above set forth, the plaintiff sought to reclaim the property and discovered that the defendant had possession of the same, claiming title under a bill of sale from Blohm, bearing date January 12, 1898. Demand was made upon the defendant, who admitted possession of the goods, but refused to deliver the same, and the plaintiff brought this action.

The instrument under which the plaintiff claims title was not filed in the Register’s office of the City and County of New York, *5where Blohm resided at the time of the execution thereof, and the defendant insists that by reason thereof it was void as to him. In disposing of this question, it is not necessary to determine whether such instrument is a chattel mortgage or a conditional sale, as there was sufficient evidence to warrant the justice in finding as he did, that the defendant was not a *bona fide*purchaser.

While fully concurring in the views expressed by the justice upon this subject, I think, nevertheless, the judgment should be reversed, because it is not based upon the market value of the chattels at the time of their alleged conversion. Parmenter v. Fitzpatrick, 135 N. Y. 190; Hawver v. Bell, 141 id. 140. Although there was proof of the value of the same at the time of their purchase, still this was not the measure of damages under the rule. The goods, as seen, were sold and delivered on or about the 9th day of November, 1897, but no demand for the return thereof was made until on or about the 29th day of March, 1898, the day of the alleged conversion, a lapse of more than four months, during which time the greater part of the same had been in constant use by tenants of said flats. According to. the testimony of Mrs. Blohm, the wife of said C. A. Blohm, the articles were located in particular flats or separate apartments in the premises in question, but that they were in fairly good condition, “ considering the use they had.” They had not deteriorated very much. *“*Of course, the china and destructible articles were broken, but the furniture and large pieces were intact, and pieces of china and bed linen were missing.” Part of it had been destroyed, and some of the china, glass, knives and forks had disappeared. The only other evidence touching upon deterioration was by a witness called by the defendant, one Solomon McLoughlin, a second-hand furniture dealer, who testified that he had examined the furniture in flat 25 on the second floor, and that in his estimation its market value was $65.

The goods in suit were of a miscellaneous character; some were lost or destroyed, and those remaining were not in the same condition as when delivered. Under these circumstances, proof of the original value was not sufficient as proof of the market value at the time of the alleged conversion, and the judgment not being based upon proper proof of damages, as to amount, a new trial must be ordered.

In the absence of proof that the goods in controversy, had no market value, the principle of the decision in Waterman v. Ameri*6can Pin Co., 19 Misc. Rep. 638, is not applicable to the present case.

The fact that the question of the value of the chattels was not raised by the motion for dismissal of the complaint, has no significance; the matter did not involve the legal sufficiency of the proof since a judgment for some amount, in the plaintiff’s favor, if but for nominal damages, was called for by the evidence that the chattels had some value.

The difficulty is that the damages awarded were clearly excessive, because based solely upon proof of their value when new, whereas the evidence' can lead only to the conclusion that this did not represent their actual value at the time of the conversion.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and Gildersleeve, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.