#### Mary F. Johnson, Appellant, *v.*Nathan Marks, Respondent.

(Supreme Court, Appellate Term,

February, 1910.)

Conversion (tortious) — What constitutes — In general—Taking by city marshal without levy.

Damages — Measure for torts — Liability for wrongful taking or detention of property—Detention.

When a city marshal takes possession of an automobile which belongs to a married woman upon an execution against, her husband, it is error to instruct the jury, in an action brought by the owner for conversion and damages, that it is for them to determine whether or not a levy has been made and, if not, they should find for the defendant.

When the automobile was not used by the plaintiff for pleasure but was hired by her to others for profit, it. was error to exclude evidence of the value of the use of the automobile during the sixteen days that the marshal had possession of it; and in such case interest upon its value would be inadequate compensation to the owner.

Appeal by the plaintiff from a judgment in favor of the defendant, entered upon the verdict of a jury in the Municipal Court of the city of ¡New York, fourth district, *154borough of Manhattan, and from an order denying a motion to set aside the verdict.

Charles Weishaupt, for appellant.

Firestone & Silver, for respondent.

Seabury, J.

The plaintiff, who was the owner of an automobile, sued the defendant, a city marshal, for damages for conversion. The marshal levied upon the automobile under an execution against the property of the defendant’s husband. After detaining the automobile for sixteen days and before this action was brought, it was, upon a writ of replevin, taken from the possession of the marshal and returned to the plaintiff. The learned court below submitted the case to the jury, upon the theory that it was for them to determine whether or not a levy had been made, and instructed them that, if a levy had been made, the" plaintiff was entitled to recover and that, if no levy had been made, they should return a verdict for the defendant. The plaintiff excepted to this charge. The jury returned a verdict for the defendant. The charge was incorrect and the theory upon which the case was tried was erroneous. The evidence established the fact that the plaintiff was the owner of the automobile and that the marshal took possession of it and retained possession for a period of sixteen days under an execution against the property of the plaintiff’s husband. Upon the evidence there was no question that the'marshal took possession of the plaintiff’s property. This was a conversion of the plaintiff’s property, unless the marshal could justify his action by showing that he took the property under lawful process against the plaintiff. This he failed to do. The only question before the jury was the amount of the damages which the plaintiff was entitled to recover. The court excluded evidence of the use value of the automobile during the sixteen days that the marshal had possession of it. The automobile was not used by the plaintiff for pleasure, but was hired by her to others for profit. The books are .uniform in laying down the rule that, where property *155has been converted and is returned before suit brought, the plaintiff will be deemed to have received it in mitigation of damages. Dailey v. Crowley, 5 Lans. 301; Hibbard v. Stewart, 1 Hilt. 207; Reynolds v. Shuler, 5 Cow. 323. These cases do not, however, declare the amount of damages which should be awarded for the detention of the article converted. In actions of conversion, when the article has been returned, it has been customary to award interest upon the value of the article converted to the time of the trial. In Allen v. Fox, 51 N. Y. 562, it was said that “ it would have to be a very special case that could authorize greater damages.” In Flagler v. Hearst, 91 App. Div. 12, where a yacht was converted and returned to the plaintiff, it was held that the defendant was liable only for interest upon the value of the yacht up to the time of trial. In that case the learned judge writing the opinion of the court said: “ In actions for conversion the rule of damage is exceedingly simple. The plaintiff is entitled to recover the highest value of the article converted, from the time of the conversion to the time of the trial, and he is also entitled to , recover as damages interest upon such value.” After applying this rule to the facts of that case, the court said: “We know of no other rule regulating the measure of damages in ' actions for conversion.” That the rule was not stated with accuracy in Flagler v. Hearst, 91 App. Div. 12, was afterward recognized in Corn Exchange Bank v. Peabody, 111 id. 553, where the same court stated the general rule in the following language: *“In the absence of special circum*stances, in an action for conversion of personal property, the value of the property at the time of such conversion, with interest, is the measure of damages.” The rule thus declared is in accord with the statement of it in Allen v. Fox, *supra;*and this statement of it recognizes that it is not an absolute rule and that, when special circumstances exist, a different-rule is to be applied. Rules for estimating damage are not intended as dogmas from which no departure can ever be made. Like rules in reference to nearly all other matters, they are subject to exception and are to be used so as to give effect to the purpose they were intended to serve, rather *156than to he applied as stereotyped formulae without regard to whether they result in justice or injustice. The aim of the law, in awarding damages in actions of tort, *“*is to give the injured party a full indemnity and no more, unless the injury has been willful or malicious.” Allen v. Fox, *supra.*Where an article having a usable value is used for profit, is converted and then returned after a delay, an award of interest upon the value is not necessarily full indemnity. An illustration will make the matter clear. Assume that an automobile valued at fifteen hundred dollars, which the owner has been accustomed to hire out at a profit of from ten dollars to twenty-five dollars a day, is converted and after a period of thirty days is returned, to award the plaintiff interest upon the value would entitle him to recover only seven dollars and fifty cents. Hence the amount awarded the plaintiff for the thirty days’ detention would be less than the usable value of the automobile for a single day. Applied to such a case, the rule results in absurdity and injustice.

In the case at bar, what the plaintiff in fact lost and what she is suing to recover is the value of the use of the automobile during the time of its detention. We think she is entitled to be compensated for the value of this use for the sixteen days during which she was, by the wrongful act of the defendant, deprived of the use of the automobile.

Lehman and Bijuk, JJ., concur.

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

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