#### Algernon S. Baxter, Pl’ff and App’lt, *v.*Edward B. Wesley, Def’t and Resp’t.

*(New York Common Pleas,*

*General Term,*

*Filed June 3, 1889.)*

1- Conversion—Who can maintain action—What will be recovered— Parties.

Where property is converted in which two persons possess an interest, the one as general owner, the other as special property man, either of them can maintain an action for the conversion, and whichever of them. *58may first recover, will recover the full value of it, and the recovery by either bars a recovery by the other; so that where an action is commenced by one of the parties in interest for the conversion of the property, the defendant in the action cannot set up that there is a defect of the parties to the record, because the other party in interest is not joined as plaintiff.

2. Same—When corporation or its president cannot be adjudged GUILTY OT CONVERSION.

Ten bonds of $1,000 each were delivered by the plaintiff to the defendant, as president of a marble company, to borrow money upon for the use of the company. Five of these bonds were hypothecated to R.' by the company, for money borrowed of him. Afterwards, the plaintiff sold these ten bonds to R., and gave him a written order on the company to deliver all the ten bonds to him; but as the company had borrowed of R. on five of the bonds, it did not deliver any of the bonds at that time but subsequently the plaintiff delivered five other bonds (which are the subject of this suit) to the company, to be used by it as collateral security, in the place of the five bonds previously hypothecated by it to R.. and the company thereupon delivered these last five and the other bonds then in their hands toR. *Seld,*that as this arrangement was the result of an understanding reached by all the parties, neither the corporation nor its president, the defendant, could be adjudged guilty of conversion of the bonds in question by a delivery of them to R.

This suit was originally commenced by the service of a summons and complaint, on March 20, 1885, and issue was joined, by the service of an answer, May 26, 1885.

The original parties were, in addition to the above, Gustavus Ricker, as a party defendant, but by an order of court, entered April 6, 1887, the action was severed, and leave given to the plaintiff to proceed against the defendant Wesley alone. The issues raised by the pleadings were then referred to the Hon. H. C. Van Vorst, as referee, to hear and determine.

The action was for damages for the conversion of five bonds belonging to the plaintiff, of $1,000 each, of the Wakefield Variegated Marble Company, a corporation incorporated under the Laws of the state of New York, whose principal office is in the city of New York.

After hearing the proofs of the parties, the referee found for the defendant, and that the complaint should be dismissed, and submitted the following opinion:

Van Vorst, Referee :

It is claimed on the part of the plaintiff, in opposition to the defendant Wesley’s motion to dismiss the complaint, that the proof shows that the defendant, W esley, is individually liable for a conversion of his bonds. The plaintiff can only succeed by showing an actual and not a constructive conversion by the defendant, Wesley, individually. The demand made by the plaintiff of the defendant, Wesley, if what he said may be called a demand, and the omission of the defendant, Wesley, to return the bonds which had been left by the plaintiff with Jacoby, the treasurer of the corporation, will not justify a recovery by the plaintiff. The demand was made, not at the office of

*59the corporation where the bonds were left by the plaintiff, but in New Street, and appeared to be casual, at the time it was made. The plaintiff well knew that the defendant, Wesley, could not respond to it, as the bonds had been sent by one Bicker, through the Union Trust Company, to the court in Vermont, where the mortgage covering these bonds had been foreclosed. It such disposition of these bonds by Bicker and the Union Trust Company was a conversion, the company itself, with whom the bonds had been left by the-plaintiff, and of which defendant Wesley was president, would be responsible. The defendant, Wesley himself, would also be individually liable if it appears that the delivery to Bicker for such purpose was distinctly made by him, with knowledge on his part, that they were the bonds of the plaintiff, which had been deposited with the corporation for another purpose. The evidence, although not very strong, is sufficient to put Wesley on the defensive, tie is called upon to explain. It does not distinctly appear when he was advised that the plaintiff’s bonds were placed in the company’s safe,- nor, in fact, that he had knowledge of them, until November, 1884.

The receipt signed by him is, however, dated the 3d day of September, 1883. It is, however, incumbent on the defendant, Wesley, to show the facts and circumstances bearing upon this transaction, which would exonerate him from the charge of negligence in delivering the bonds to Bicker, or in suffering him to take them away. The defendant Wesley’s suggestion that the plaintiff has sustained no damage, as the bonds were cut off by the foreclosure and would have been in any event lost to the plaintiff in part at least, is no ground for the dismissal of the complaint. Such facts, as well as others bearing upon the question of value, may be shown in mitigation of damages.

The motion to dismiss the complaint is denied, and the case is set down for hearing, January 11th, at 2 p. M.

Upon which report of the referee, judgment having been entered by the court, this appeal was taken.

*Redfield &*Lydecker, for plt’ff and app’lt; *D. & T. McMahon,*for def’t and resp’t.

Per Cxjriam.

We have carefully examined the testimony in this case, and think it fully supports the findings of the learned referee who tried the case, and we think the reasons given by him in his opinion conclusive on the merits of the action.

Judgment should be affirmed, with costs.