#### Cyrus Scofield, Pl’ff and Resp’t, *v.*Samuel Kreiser, Impleaded, etc., Def’t and App’lt.

*(City Court of New York,*

*General Term,*

*Filed February 14, 1889.)*

Conversion—Lease of goods—Filing of lease—Laws 1884, chap. 315— Action by lessor—To what extent recovery may be had. '

In August, 1885, plaintiff rented to F. certain goods. By the lease, no title pa.ssed until all the installments of rent had been paid. In March, 1886, before all the installments were paid, F. sol'd the goods to the defendant, who without any notice of plaintiff’s claim, except such as the law implied from the filing of the lease, afterwards sold part of the goods at auction and returned the remainder to F. The lease of the goods to F was duly filed September 4, 1885, in the office of the register of the city of New York, in accordance with chapter 315, Laws of 1884. *Neld,*that as to the goods returned to F. before any demand upon the,defendant by the plaintiff had been made, the plaintiff cannot recover.

Appeal from judgment entered upon a verdict in favor of plaintiff, and from an order denying defendant’s motion for a new trial.

*Abram Kling,*for app'lt; *Me Adam & Me Crea,*for resp’t; *William G. McCrea,*of counsel.

Nehrbas, J.

This is an action for the conversion of certain articles of furniture. In August, 1885, one F. Fairbanks hired from the plaintiff the goods, for the conversion of which this suit is brought. By the terms of the lease, no title was to pass to said Fairbanks until all the installments of rent mentioned therein were paid, which was never done. The lease was filed in the office of the register of the city of New York on September 4, 1885, in accordance with chapter 315 of the Laws of 1884. In the month of February, 1886, Fairbanks had the goods stored in the Lincoln Safe Deposit Company in New York city. On March 13, 1886, Fairbanks sold said goods to the defendant Kreiser, who had them removed from the storehouse, upon Fairbanks’ order, to the defendant’s premises.

The defendant is an auctioneer, and on March 15th, 1886, he sold the larger portion of said goods at auction, and on the same day returned some of the goods to Fairbanks, evidenced by the receipt of Fairbanks (def’t’s exhibit 3). The articles of furniture so returned to Fairbanks form a part of the goods, for the conversion of which this action was *119begun. The defendant, when he purchased the goods from Fairbanks, and when he returned a portion of them to him, had no actual knowledge of plaintiff’s claim thereto, except such as the law implied from the filing of the lease referred to. No demand was made until some time after March 15, 1886, this action having been commenced on April 10, 1886. Fairbanks has evidently disappeared.

Upon the trial the court was requested to charge the jury, “that if they find that any of the goods purchased by the defendant from Fairbanks were returned to Fairbanks before any demand was made upon the defendant by the plaintiff, then, as to such goods, the plaintiff cannot recover.” This the court refused to charge under exception. The only question submitted to the jury was as to the value of the property. The jury found a verdict for the plaintiff for $307. Hence, this appeal.

W e think that the court erred in declining to charge the jury, as requested. The defendant exercised no act of ownership or interference with the goods which were returned to Fairbanks, from whom he had purchased them, with other property. Within two days after the goods were delivered to the defendant, he returned them without actual knowledge of any claim to them by the plaintiff, and before any demand was made upon him. No conversion can be predicated upon the defendant’s act of receiving from and immediately returning to his vendor the goods in question, unless he did so in defiance of the plaintiff’s rights, or acted collusively, so as to deprive the plaintiff of the possibility of recovering his property. Neither' is claimed in this case. When the demand was made upon him, he neither had the goods in his possession, nor had his interference therewith been such as to place the plaintiff in any different position than that which he occupied before their delivery to the defendant. The goods had simply passed through his hands back to the person from whom he received them, without the exercise of any authority or acts of ownership over them. This interference, under the circumstances, does not amount to a conversion. We have not been referred to any authority supporting any such claim. The defendant did all that he could have ' been required to do under the circumstances, and *non con-stat,*he would have delivered up the goods to the plaintiff had he been asked to do so.

The refusal to charge as requested was error, and as the defendant has clearly been prejudiced thereby, the jury having included these goods in their verdict, the judgment and order áppealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

McGowan, J., concurs.