#### Purves *vs.*Moltz.

1. Where goods come rightfully into the possession of a party, as a mere bailee in good faith, and they are subsequently wrongfully detained, it is. necessary, in an action for their wrongful detention, to allege a demand of the goods.

2. Where goods come to the possession of a party by a mistake of which he is fully aware at the time, and subsequently, for voluntary repairs put by him upon the property he claims a lien thereon, for which he detains it, he becomes a wrongdoer from the beginning, and consequently liable in .an action for a wrongful taking and detention, and no demand for the delivery need be alleged.

(Before Robertson, Ch. J.

at special term, term, April —, 1867.)

Motion by the defendant for a new trial.

The plaintiff* haying purchased a sewing machine, the vendor gave orders to á carrier to deliver the same to the plaintiff, at his address. The carrier having lost the directions, delivered the machine to the defendant. The machine being out of order, the defendant, who was a machinist, paid the carrier’s charges and repaired the machine. His charges for repairs were $9.25, which he insisted upon having before he would give up the machine. -Ho demand, or time or place of conversion were stated in the complaint. At the trial the defendant’s counsel moved to dismiss the *654complaint, on the ground that these were material facts, which should have been alleged. The motion was denied, and the. ruling excepted to. The motion was renewed at the close of the plaintiff’s case, and when the proofs were all in, and again denied, and the decision excepted to.

The jury found a verdict for the plaintiff both for the damages and for the value of the machine, as assessed by them. The defendant moved for a new trial, upon the ground that a demand and refusal should have been alleged and proved, in order to enable the plaintiff to maintain the action.

*Hart Boyce,*for the plaintiff.

*A. H. Heavy,*for the defendant,

cited *Fuller*v. *Lewis,*(3 *Abb. Pr.*383;) *Gardner*v. *Humphrey,*(10 *John.*53;) *Jackson*v. *Rogers,*(11 *id.*33;). *Stevens*v. *Hyde,*(32 *Barb.*171;) *New York Car Oil Company*v. *Richmond,*(10 *Abb. Pr.*185;) *S. C. 6 Bosw.*213.)

Robertson, Ch. J.

The action in this case is for goods wrongfully taken and detained. The complaint alleges them to have been so taken, without any demand .for their delivery, which would be necessary to show a right of action, in case the goods came rightfully into the defendant’s possession, and they were subsequently wrongfully detained. *(New York Car Oil Company*v. *Richmond,*6 *Bosw.*213. *S. C.*10 *Abb. Pr.*185.) Such demand was necessary to be alleged in an action for a mere wrongful detention, where the original possession was lawful, and a demurrer would lie for want of it.

In this case the evidence showed that the machine sued for was delivered to the defendant by a blunder; that he did nothing, when he received such machine, to correct the mistake, but rather lent himself to favoring it. He had never had any communication with any one, respecting it, before; had no reason to believe that it was intended for him, *655and yet received it into his possession, without authority from the owner, having good reason to believe, from the. statement of the express driver who delivered it to him, that it was not intended for him. If he had done nothing more than become a bailee in good faith, he probably would not have been liable in an action for the wrongful taking. But forthwith, after receiving it, he commenced to make repairs upon it, without any request or direction from any one; no such purpose having been stated by the party leaving it. Having made such repairs wrongfully, he claimed a lien on the machine for their value, which, of course, made his detention wrongful. Such conduct may be made to relate back to the original receipt of it, so as to throw light upon the motive for taking and keeping it. If he took it, knowing of the mistake, and intending to get a job, and compel the owner to pay for it, or retain possession until he did, he did not receive it for a legitimate purpose with the plaintiff’s assent, and.was a wrongdoer from the beginning. He knew the expressman had no authority to deliver it to him, and if he sought to take advantage of his neglect or mistake, he was not an innocent bailee.

Larceny may be established by the evidence which the' subsequent conduct of a party affords of the purpose of the original taking, although the article may be voluntarily delivered. I see no reason why a tort may not also be established by the same means. If the defendant had instantly demolished the -machine there would have been no doubt as to the character of the original taking. I cannot per- ‘ ceive any difference, in principle between that case and this.

The verdict of the jury is, therefore, conclusive, and a new trial must be denied, with $10 costs.