#### BURGHEN v. PURDY et al.

(Supreme Court, Appellate Division, Fourth Department.

March 26, 1898.)

1. Conversion—Directing Nonsuit.

In an action by the mortgagee for the conversion of chattels, where there-is evidence that the property was wrongfully seized and converted by a third person as assignee of the mortgage, and that he and the mortgagee acted in the matter in concert, directing a nonsuit as to the mortgagee is-error.

2. Same—Nonresidence op Defendant.

Directing a nonsuit on the ground that defendant was a nonresident of the county at the time the action was commenced was error where there was evidence that he occupied rented rooms at the time in the county.

Appeal from trial term, Erie county.

Action by William J. Burgh en against Charles G. Purdy and ThomasDulmage to recover the value of goods alleged to have been converted. From a judgment of nonsuit, and an order denying a motion for new trial, plaintiff appeals. Reversed.

The complaint alleges that on February 4, 1896, the plaintiff executed to the defendant Purdy a chattel mortgage to secure $212 on certain articles of household furniture purchased of Purdy about that date, to secure the purchase price thereof, and also alleges that on February 17th the plaintiff executed to Purdy a second chattel mortgage in the amount of $88.50 on certain other household furniture, and that the plaintiff paid several sums upon said mortgages. It is averred “that said sums paid to the said Purdy as interest were far in excess of the amounts of interest lawfully due and owing on said mortgages, and were usurious and extortionate, and were forced from the plaintiff by threats of said Purdy to foreclose said mortgages.” It is further alleged in the complaint that Purdy subsequently “pretended to assign to the defendant Dulmage the aforesaid mortgages; that on' or about the 2d day of September, 1896, the defendant Dulmage, acting under 'cover and color of right of the said mortgages, but in reality, as the plaintiff is informed and believes, acting at the instigation and under the direction of the said Purdy, as his tool and cat’s paw, together with, agents of the said defendant Purdy, did unlawfully enter upon the premises of the said plaintiff at No. 178 Elm street, Buffalo, N. Y., and under cover and color of right of the said chattel mortgages did unlawfully, willfully, and wrongfully seize, carry away, and convert to the use of the said defendants all the household furniture and chattels mentioned and described in the aforesaid mortgages, and, in addition thereto, certain property of the plaintiff, consisting of articles .of household furniture and chattels not included in the said mortgages,” specifically mentioned and described in the said complaint. It is averred that the property thus seized and carried away was the property of the plaintiff, and “that the defendants were so notified, and knew, when they took, carried away, and converted the said goods and chattels, that they were forbidden by the plaintiff to take or remove the same.” The answer of the defendant Dulmage admits execution and delivery of the two chattel mortgages, and avers that on the 26th of August, 1896, he purchased the chattel mortgages of the defendant Purdy, and demanded payment thereof, and that ip virtue of the mortgages he seized the property mentioned in the complaint, and advertised and sold the same at public auction, and that the sum received was insufficient to pay the amount due from the plaintiff upon the mortgages. The answer admits that Purdy is a resident of the city of Buffalo, and denies the other allegations of the complaint not so admitted. The answer of Purdy admits the execution and delivery of the-two chattel mortgages mentioned in the complaint, and alleges that “on the 26th day of August, 1896, fpr value received, he sold and assigned the said chattel mortgages to the defendant Thomas Dulmage, who thereby became the true and lawful owner and holder of said chattel mortgages”; and denies the other allegations of the complaint. Exceptions were taken by the plaintiff at the time the motions for a nonsuit were granted by the trial court. During the trial the

*547plaintiff made a motion “that the evidence submitted by the plaintiff, the statements that were made by Dulmage, and also the statements made by Purdy, and all of the evidence that has been submitted in reference to the acts of Dulmage, shall apply to Purdy.” The court granted that motion, and thereafter the motion for a nonsuit in behalf of Purdy was granted. The defendant Dulmage made a motion for a nonsuit upon the ground “that the court has not jurisdiction over the subject-matter of the action or of the person of the defendant. The defendant is a resident of the city of Rochester, and has never resided in this county.” That motion was denied, and the court, in denying the motion, observed, “There is no evidence to show that he resides in Rochester.” Thereafter the defendant Dulmage was examined as a witness, and gave evidence tending to indicate that his residence was in Rochester, Monroe county. The motion for a nonsuit in behalf of Dulmage was renewed, and in response thereto the court observed: “I don’t want to dismiss the case if you expect to prove he lived here; but, if the proof stands as it is now, there is no use going: any further, because, if he is a nonresident,—if he lives in Rochester,—then the court has not got jurisdiction.” Thereupon the plaintiff called Mary Fitzgibbons, who gave evidence tending to show that she rented to the defendant Dulmage rooms for himself and wife in August, and that his wife accompanied him to the rooms, and resided there, and that he continued to pay her rent, and that he “kept his rooms with his wife from some time in the forepart of August.” The room which Mrs. Fitzgibbons rented to Dulmage was property belonging to the defendant Purdy,

Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.

F. H. Callan, for appellant.

Eugene M. Bartlett, for respondents.

HARDIN, P. J.

We think the evidence was sufficient to require the court to submit to the jury the question whether the defendants were acting in concert in seizing the property of the plaintiff, and removing the same from his rooms. The evidence tended strongly to indicate a concert of action between the two defendants, and we think sufficient was given to warrant the jury in finding that the acts of Dulmage were authorized by the defendant Purdy, and that the defendant Purdy subsequently, after learning of the acts of the defendant Dulmage, approved and ratified the same. When the question was raised as to his residence, there was a conflict of evidence sufficient to make it a question of fact for the jury to determine whether or not he resided in the county of Erie at the time of the commencement of the action. We think the exceptions present error, and that the nonsuit should be set aside.

Judgment and order reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.