Opinion
March Term, 1896.
Waldo W. Willard, for the appellant.
Benjamin Tuska, for the respondent.
It is a little difficult from the complaint to ascertain just what cause of action this plaintiff has against the defendant. The complaint alleges that a certain iron or metallic cage or structure, located at 83 and 85 Green street, in New York city, was in the possession of the plaintiff and was used by him in the business of manufacturing feathers, and that plaintiff's representatives, under the direction of the plaintiff, went to the said premises for the purpose of removing the same, but were hindered and prevented from removing the said cage or structure by the defendant and his representatives or employees, but that the defendant removed the said cage or structure, or procured the same to be removed, without the consent or authority of the plaintiff. There is no allegation that the plaintiff demanded the possession of the cage from the defendant, or that the defendant converted the same to his own use, nor is there any allegation that the plaintiff sustained any damage in consequence of the defendant's refusing to allow him to remove the cage, or that the cage was of any value. The complaint is clearly insufficient to justify the granting of any judgment against the defendant.
The action seems to have been tried upon the theory that it was an action for the conversion of the cage. No objection was taken to the form of the complaint. Upon the evidence it appeared that the plaintiff was a tenant of the premises and his lease seems to have expired on the 31st of January, or the 1st of February, 1893; that he did not remove this structure before the termination of his lease; that the defendant, who was a repairer of roofs, was employed by the owner of the premises to put on a new roof; that he found the structure upon the roof and took it down for the purpose of performing his contract; that after he had taken it down, and while the structure was in the street, some men employed by the plaintiff told the defendant that the structure belonged to the plaintiff and not to the defendant, and that the defendant said "Leave that there, I don't care," and that the defendant told this witness that he could not take it away. There was no evidence as to the value of these articles in the street which formed part of the structure, and nothing to show to the defendant the authority of the workmen, who made this demand, from the plaintiff. The only evidence at all as to the value was that of a mechanic, who never saw the structure, and who said he would regard $600 as a fair estimate for the value of the work if performed by him; that the value of labor in using and handling that sized piping would be seventy-five per cent and twenty-five per cent for material. This evidence referred to new material and not to the value of the material after it had been used and was taken down. The plaintiff by leaving this structure on the premises after the expiration of his lease, could not complain that the owner of the premises, or defendant as his employee, removed it, and while it is possible he might be entitled to the materials after they were removed, if he had made a proper demand, there is nothing to show that such a demand was made, or that the materials were of any value. No cause of action was either alleged against the defendant or proved upon the trial. For that reason we think the complaint was properly dismissed.
The judgment should, therefore, be affirmed, with costs.
VAN BRUNT, P.J., BARRETT, RUMSEY and O'BRIEN, JJ., concurred.
Judgment affirmed, with costs.