Opinion
June, 1915.
Katz Sommerich, for appellant.
Thompson Ballantyne (Raymond Ballantine, of counsel), for respondents.
The subject of the action is a block of marble. Only a question of law is involved in this appeal. One Feeney, on October nineteenth, sold to plaintiff a lot of marble (including this block) then lying in Shuttleworth's yard. Feeney was not at the time the owner of the marble, but was negotiating for its purchase from defendants, who subsequently sold it to Feeney. Defendants were fully cognizant of the sale by Feeney to plaintiff. Shortly thereafter defendants told Feeney that this particular block and others could be sold at a considerable profit to the Ætna Marble Company, and Feeney testified that one of the defendants "asked me did I think it would be all right, and I said 'I do not think there is any question about its being all right. The Tompkins Kiel Marble Company (plaintiffs) are not anxious for the 20 blocks that is in Shuttleworths. I do not think they would object to receiving a profit on their sale.'" Thereupon defendants sold the entire lot to the Ætna Marble Company, and plaintiff claims that such act was a conversion.
It is not necessary to determine whether the mere acquisition of this block by Feeney after he had sold it to plaintiff did not in and of itself vest the title thereto in plaintiff (see Rochester Distilling Co. v. Rasey, 142 N.Y. 570) because both sides seem to be willing to rest their claims on the need of some further step by Feeney, plaintiff-appellant, claiming that that should amount to "an appropriation for the benefit of the plaintiff." Respondent insists that such appropriation must be in the form of an act, citing Langton v. Higgins, 28 L.J. Exch. 252; Burrows v. Whitaker, 71 N.Y. 291, and many other cases.
Bearing in mind the fact that no rights of creditors intervene or are even suggested in the present case, and that defendants were familiar with every detail of the transaction, so that whatever bound Feeney bound them, I am unable to find in the conversation testified to by Feeney anything other than an express acknowledgment that he considered the marble (including this block), all of which was specified and well known to each party, to be the property of the plaintiff. So far as creditors of the parties might be concerned, some overt act might have been required to publicly emphasize and effect the vesting of the title in the plaintiff, but, as between the parties themselves, I cannot understand why an act should be required since the only legal effect of the act would be to permit therefrom, as an inference, the thought expressly spoken by Feeney to defendant, namely, that the marble belonged to plaintiff.
GUY and PAGE, JJ., concur.
Judgment reversed and a new trial ordered, with costs to appellant to abide event.