Michalover v. Moses

Full title: MAX MICHALOVER, Respondent, v . MARCUS MOSES, One of the Marshals of the…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jul 1, 1897

19 App. Div. 343 (N.Y. App. Div. 1897)

46 N.Y.S. 456

Opinion

July Term, 1897.

Abram Kling, for the appellant.

Julius H. Cohn and Herman M. Solomon, for the respondent.

WILLIAMS, J.:

The action was for conversion. The personal property belonged to the plaintiff and one Rines as copartners, who were equally interested therein.

The defendant, under an execution against Rines individually, took and sold the whole property and not merely Rines' interest therein. This constituted a conversion of the plaintiff's interest in the property. While the plaintiff might have taken and sold the undivided interest of Rines, and in that event might have delivered the whole property to the purchaser, yet the purchaser would have acquired title to only the interest of Rines, which would have been the undivided one-half, subject to the claims of creditors of the partnership, and he would have been obliged to account to the creditors and the plaintiff for their interest therein, the same as Rines himself would. When, however, the defendant took and sold the entire property, as the individual property of Rines, he was guilty of a conversion of plaintiff's interest therein. ( Walsh v. Adams, 3 Den. 125; Waddell v. Cook, 2 Hill, 47; Zoller v. Grant, 56 N.Y. Super. Ct. 279; Berry v. Kelly, 4 Robt. 106; Bates v. James, 3 Duer, 45; Atkins v. Saxton, 77 N.Y. 195.)

Sections 1413 and 1414 of the Code of Civil Procedure recognize this rule of law, and provide for cases wherein levies may have been made upon the interest of partners in the property of the copartnership by virtue of executions against individual copartners. ( Read v. McLanahan, 47 N.Y. Super. Ct. 275.)

There can be no doubt as to the plaintiff's right to recover in this form of action. The theory of the right of action is that the defendant, by such seizure and sale of the whole property, is guilty of such interference with the plaintiff's rights as constitutes a conversion of his, plaintiff's, interest in the property.

The judgment appealed from should be affirmed, with costs.

VAN BRUNT, P.J., PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.

Judgment affirmed, with costs.