#### Amalie Gregory, Resp’t, *v.*August Fichtner, Ex’r, App’lt.

*(New York Common Pleas, General Term,*

*Filed June 1, 1891.)*

1. Conversion—Demand and refusal.

Plaintiff, claiming to be the owner of certain articles of personal property, demanded them from defendant’s testator, who had possession thereof. The latter “ gave her a push” and said “ Go away from here; whatever I have, I will keep.” *Held,*that the refusal to deliver under such circumstances furnished *prima facie*evidence of a conversion.

2. Same—Limitation.

If personal property be deposited with a bailee, not to be returned at a fixed time-or upon a fixed contingency, and an alleged conversion thereof is founded on a wrongful detention after demand, the statute of' limitations will run only from the time of such demand.

*1933. Same—Proof of value.

A person not shown to be qualified as an expert is incompetent to express an opinion of the value of articles of jewelry, even though she be the owner thereof. The mere fact of the purchase of the goods is no proof of her acquaintance with the value.

4. Same—Evidence.

Certain personal property, inclosed in a box, was handed by plaintiff to an intermediary, with instructions to deliver the same to defendant’s testator. The box was so delivered to said testator, the intermediary being ignorant of its contents. *Held,*that proof by plaintiff of the specific articles contained in said box, tending to establish delivery, necessarily involved testimony as to a personal transaction with the deceased, and was incompetent under § 829 of the Code.

Appeal from judgment and order of the general term of the city court, affirming judgment on a verdict and an order denying motion for a new trial

Action for conversion of several pieces of jewelry by defendant’s testator.

*John A.*Straley, for app’lt; *John*Stacom, for resp’t.

Pryor, J.

The contention that the proof was insufficient to authorize a verdict for the plaintiff is clearly untenable; and, upon an appeal from a judgment of affirmance by the general term we have no jurisdiction to review the weight of evidence. We are confined, therefore, to the consideration of errors in law apparent, on the record.

As intimated, the court rightly refused to dismiss the complaint, either for intrinsic defect or insufficiency of proof. The complaint alleges property in the plaintiff, possession by the defendant as bailee, his refusal on demand to deliver the jewelry and its value. Nothing more was requisite to a cause of action for conversion.

And of these allegations something more at least than a scintilla of evidence was adduced. The criticism of the appellant is-that the jewelry owned and demanded by the plaintiff was not identified, by proof, as the jewelry in controversy; but, as only one parcel of jewelry is indicated either by the pleadings or the evidence, the inference is irresistible that the jewelry demanded by the plaintiff was the jewelry detained by the defendant

The appellant argues that the demand and refusal in evidence was not sufficient proof of conversion, because it was not apparent that the defendant had either possession of the jewelry or had parted with it to evade delivery of it But, if a defendant has parted with possession, it is not necessary to show that he did so with a fraudulent purpose. The facts here fail to support the proposition on which the appellant relies, namely: “If, at the time the demand is made the goods are in the actual possession of another, and the person of whom the demand is made has not, and never had, any control over them, the fact that he claims the goods, and declares they are his own property, will not amount to a conversion,” *Andrews*v. *Shuttuck,*32 Barb., 896, but the evidence presents rather that other criterion of conversion propounded by Earl, J., in *Gillet*v. *Roberts,*
      *19457 N. Y., 28, namely: “ Where mere words are relied upon, they must be uttered under such circumstances, in proximity to the property, as to show a defiance of the owner’s right; a determination to exercise dominion and control over the property, and to exclude the owner from the exercise of his rights.” The uncontradicted evidence is, that the defendant’s testator had possession of the jewelry; and that when the plaintiff demanded it of him “ he gave her a push,” and said, “ go away from here; whatever I have I will keep.” A refusal to deliver under such circumstances, furnishes plenary proof of conversion.

The appellant further contends, that his plea of the statute of limitations was made good by uncontroverted evidence. The proof is that, in 1872, the defendant received the articles of jewelry on deposit for an indefinite period, and that in 1884 or 1885 the return of them was demanded by the plaintiff. The action was commenced in February, 1885. In the absence of evidence of any actual conversion, the refusal to deliver on demand constituted the conversion; and indisputably the statute commenced to run at the time of that refusal. It was so at common law,’ and it is so by the express terms of the Code, which provides that, “ where there was a delivery of personal property, not to be returned at a fixed time or upon a fixed contingency, the time must be computed from the demand.” Sec. 410, subd. 2. “ This section was a codification of the law as it existed at the time of its adoption and created no new rule of law,” *King*v. *Mackellar,*109 N. Y., 215, 224; 14 N. Y. State Rep., 838, and at common law the rule was elementary, that “ where a demand is necessary to perfect a right of action, the statute runs from the demand.” 13 Am. and Eng. Ency. of Law, 721; *Payne*v. Gardiner, 29 N. Y., 146; *Smiley*v. *Fry,*100 id., 262. The authority relied upon by the appellant, *Ganley v.Troy C. N. Bk.,*98 N.Y., 487, instead of sustaining, quite clearly discredits his contention. The distinction is, between a deposit for a determinate and a deposit for an indeterminate period; and in the latter case, the Code, § 410, expressly provides, that “the time must be computed from the demand.” Here, the jewelry was not to be returned “ at a fixed time or upon a fixed contingency,” in other words, the deposit was for an indefinite time; and so the statute of limitations is no answer to the action. *Fry*v. *Clow, 50*Hun, 574; 20 N. Y. State Rep., 847.

So far as to allegations of error, which we find to be untenable ; we proceed to indicate others, which we deem to be well supported and of sufficient moment to require a reversal of the judgment

Although the action be against an executor, the plaintiff was not incompetent under § 829 of the Code to testify to the value of the jewelry. *Burrows*v. *Butler,*38 Hun, 157. But, as a condition of the admissibility of her opinion, it was necessary to show that' she was competent to form an opinion; in other words, that she was an expert on the value of jewelry. That a witness cannot testify as an expert unless he be an expert is elementary law and familiar practice. 7 Am. and Eng. Ency. of Law, 514. Yet, here, without any evidence whatever of her qualification to *195speak as to the value of the jewelry, the plaintiff was allowed to state the value as $1,857. True, she had said that she bought the jewelry, but she did not give the price ; and the mere fact of the purchase was no proof of her acquaintance with the value. On objection to the evidence as incompetent, the learned trial judge answered : “I will allow you (defendant’s counsel) to cross-examine the witness concerning her knowledge as to the value of this jewelry,” implying that the burden is upon a party to prove the incompetency of an adverse witness, rather than upon the party producing him to show his competency.

This error in the admission of evidence was palpably prejudicious to the appellant; for the case discloses no other proof of value to sustain the verdict; and, in his charge, the learned trial judge-assumed that the value was so conclusively shown by the plaintiff’s testimony as not to be a question for the jury. In vain the-respondent cites *Jones*v. *Morgan, 90 N.*Y., 10, as establishing the sufficiency of the proof of value in the present case; for *there*was evidence of the cost price and of deterioration by age and use, while *here*neither of those facts is exhibited.

Another error in the admission of evidence is equally fatal to the judgment. It was, of course, an indispensable part of the plaintiff’s case to prove what and how much jewelry had been delivered to the defendant; and the fact was shown thus: The plaintiff testified that she put the jewelry in a box; that the jewelry consisted of such and so many pieces; and that she left the box in custody of Mrs. Immer, with directions to deliver it to the defendant’s testator.

Mrs. Immer then testified that *she did not know what was in the box,*but that she delivered it to the defendant’s testator; and so, and not otherwise, was it proved that the defendant’s testator received the particular pieces, and all the pieces, of the jewelry for the conversion of which the plaintiff has recovered damages. The defendant moved to strike out the plaintiff’s testimony as to what jewelry was delivered to the defendant’s testator, on the ground that it was incompetent under § 829 of the Code; but the motion was denied, with an exception. The defendant then moved the court for a dismissal of the complaint on the ground “ that there is no competent evidence of the delivery of the articles,” which was also denied, with an exception. Finally the defendant requested the court to charge the jury *“*that there is no competent proof of the delivery of the jewelry,” and this, too, was denied, with an exception. Thus the point is duly presented that the plaintiff was incompetent, under § 829 of the Code, to testify to the delivery of the jewelry to the defendant’s 'testator.

Did the plaintiff’s testimony go to prove a personal transaction or communication with the deceased ? Mrs. Immer did not show what jewelry was delivered to the deceased, for she did not know. She proved only that she had delivered the box to him. It was by the evidence of the plaintiff that the jury were informed what jewelry was delivered to the deceased. Strike out the plaintiff’s testimony, and there is no evidence of that delivery. And the transaction was between the plaintiff and the deceased, although *196an unconscious intermediary was employed, as strictly and essentially as if the box had been sent by the plaintiff to the deceased through the agency of the post office or an express company. Suppose an action for the conversion of articles enclosed in an envelope and transmitted by mail: a third party proves the delivery of the envelope to the deceased, and then the plaintiff offers to testify to the contents of the envelope; would not such evidence be rejected as involving strictly and essentially a personal communication by the plaintiff to the deceased ? Disclosure of the contents of the envelope is not by the plaintiff to the postmaster, but is made, for the first time, to the deceased. So here the contents of the box were not. divulged to Mrs. Immer, and *she*did not reveal them to the deceased; but knowledge of those contents was, in the most literal sense, imparted to the deceased by the plaintiff. Plainly, it was a personal transaction and communication between the plaintiff and the defendant’s testator.

Statutes are to be construed so as to effectuate the remedy for which they are designed; and the mischief against which § 829 of the Code was directed is, testimony by an interested party of a transaction or communication which the decease of the other party makes incapable of contradiction. The present case involves the mischief; since the plaintiff testified to a transaction and communication as to which only the deceased could speak ; and being within the mischief of the former law, it is within the scope of the remedy which the new law contemplates. “ The statute is a beneficial one, and ought not to be limited or narrowed by construction. Although it must appear that the interview or transaction sought to be excluded was a personal one, it need not have been private or confined to the witness and the deceased. A contrary rule would defeat the reasonable intent of the statute, that a surviving party should be excluded, as one interested, from maintaining by his testimony an issue which in any degree involved a communication or transaction between himself and a deceased person.” *Holcomb*v. Holcomb, 95 N. Y., 316, 325; *Heyne*v. *Doerfler,*36 N. Y. State Rep., 497.

“Any fact as to which a party is prohibited from testifying by § 829 of the Code, cannot be established inferentially from his testimony.” *Johnson*v. Spies, 5 Hun, 468. “A fact that cannot be proved by him directly, cannot be established inferentially by his testimony.” *Jacques*v. *Elmore,*7 Hun, 676: *Grey v. Grey,*47 N. Y., 554.

We are of opinion that the evidence in discussion was incompetent, and its admission error.

Judgment reversed, and new trial ordered, costs to abide the •event.

Daly, Ch. J., and Allen, J., concur.