#### Sarah J. Cushman, Appellant, *v.*Samuel N. Oothout, Respondent.

*Conversion*— *demand made on a servant, when insufficient against the master.*

In an action ’brought to recover damages for the conversion of certain household goods, it appeared that at the time of the conversion the goods were in an apartment house belonging to the defendant, having been taken there by a tenant who had mortgaged them to the plaintiff and had made default in the payment provided to be made by such mortgage; that the defendant had a janitor who had never been intrusted with the custody or control of the goods and had never been instructed by the defendant to withhold them from the plaintiff; that the plaintiff, meeting the janitor upon the street, demanded the goods from him and he refused to surrender them unless she paid a bill for storage, and also certain rent due for the use of the rooms where the goods had been stored.

*Held,*that, under the circumstances, the demand made on the janitor and his refusal to deliver were insufficient to sustain an action for conversion against the defendant, his master.

Appeal by the plaintiff, Sarah J. Cushman, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the clerk’s office of the county of Monroe on the 1st day of June, 1894, dismissing the complaint upon the merits after atrial before the court and a jury, and also from an order entered in said clerk’s office on the 15th day of January, 1895, denying her motion for a new trial made upon the minutes.

The action was for the conversion of household goods. It was originally brought in the Municipal Court of the city of Rochester, where the plaintiff recovered a verdict. It was retried in the County Court of Monroe county, where the defendant had a verdict.

*Hiram H. Wood,*for the appellant.

*James*/S'. Havens, for the respondent.

Lewis, J. :

The household goods in controversy were placed in an apartment house belonging to the defendant by a Mr. Cook, a tenant of the defendant. Cook thereafter and while the furniture was in said house gave a chattel mortgage thereon to the plaintiff, as security for her indorsement of his promissory notes.

*55Plaintiff got title to tlie property mortgaged by tbe défáíifíf bftbe mortgagor in paying such notes. Tlie plaintiff sued for a cbii'véMdii of tlie mortgaged property. Her claim is that- she demanded? E&ié defendant the possession of the property and that he 'ie'fiiseteff deliver it. Whether a demand was ever, in fact, made dip'^nP-’-ffil defendant for the possession of the goods was a controvet'teÍPTtfd^ tion upon the trial. The plaintiff gave evidence tendinjf'Md'-skfów that a demand was made ujion tlie defendant personally iííid ííMuí demand was also made upon the janitor of the defendaÜfís^íjj&rtment house, a Mr. Hagadorn, and that there was a reiusahj-to deliver in both cases. The defendant testified that no demand'was ever made upon him, but that, on the contrary, when the ^pgj’lgggor, Cook, left the rooms in which the property was, the defendant called upon the plaintiff and requested her to remove the furniture from his building, as he wished to lease the rooms to another tenant. The plaintiff gave evidence tending to show that in the springyof 1893-she demanded possession of the property of liagadorn, the janitor, whom she found upon St. Paul street in the city of Bochester: that Hagadorn refused to let her have the goods unless sIM^M'iÍté" bill for storing them and also paid rent due for the rooms in which the goods had been stored. ....

The property, at the time of the alleged demand, was,in de|gnd^ ant’s building on Monroe avenue in another part of th^.cjty^aijicf there was evidence tending to show that the janitor did npjt^cftívíbe time of the alleged demand, have the key to the rooms in whi.uk? tKP furniture was, at the time, stored. Hagadorn was showiPtb ‘hWve been employed at the time of the alleged demand and refrisaTipTii^ capacity of a janitor simply. *huwss*siü

He had never been intrusted with the control or keeping rof«the goods. He testified that he had never been instructed -by the defendant not to deliver the goods to the plaintiff. i/>.-i<íkA

Assuming that the demand was made upon the janitoij~ks Awtiiff to by the plaintiff’s witnesses, we do not think his'refusal'1 id1 deliver possession constituted a conversion by the d^fendantc-. *(Goodwin*v. *Wertheimer,*99 N. Y. 149.)

We agree with the trial court that there was not sufficient dvf-' deuce to establish a cause of action, based upon the allegteff’trlhsaStion with the janitor on St. Paul street. *'*°J

*56Defendant gave evidence tending to sliow that intermediate the times of the demands, as testified to by the plaintiffs witnesses, and the commencement of the action, he informed the plaintiff that he made ho claim upon the goods, and that he wished her to remove them from his building, and that the plaintiff neglected so to do and allowed the goods to remain in the defendant’s building for a long time thereafter before commencing her action. We fail to find any reason for disturbing the verdict.

The judgment and order appealed from should be affirmed.

Beadley, Waed and WeeNER, JJ., concurred.

Judgment and order affirmed.