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structive conversion takes place when a person does such acts in reference to the goods of another as amount in law to appropriation of the property to himself. Every unauthorized taking of personal property, and all intermeddling with it, beyond the extent of the authority conferred, in case a limited authority has been given, with intent so to apply and dispose of it as to alter its condition or interfere with the owner's dominion, is a conversion. Laverty v. Snethen, supra. When property has been converted by one person and afterwards delivered to another, trover may be maintained against the latter as well as against him who originally converted it. Soltau v. Gerdau, supra; Hall v. Wagner, supra.
The claim of title by Bliven was a conversion by him; the crediting of stocks to the account of a third person was an intermeddling with them, an interference with the owner's dominion, an apparent transfer of her dominion to a third person, a conversion. But, it is claimed that the defendants acted in good faith, relying upon Bliven's claim of ownership, and that the plaintiff was negligent in enabling him to make the claim, and is therefore estopped from recovering the value of the stocks from the defendants. But the defendants testified that they relied absolutely on nothing else but the statement of C. A. Bliven as to the ownership of the stocks. It was said in Spraights v. Hawley, 39 N. Y. 441, 100 Am. Dec. 452:
"It is only when the owner has parted with the legal title upon some secret trust or condition, or has done something calculated to mislead, upon which a third party has a right to rely, and on which he does rely as evidence of authority, that such maxim (viz., that, where one of two innocent persons must suffer by the wrongs of another, the one who enabled such other to commit the wrong must bear the consequences) could have any application.
Mere possession of another's property is not such evidence of ownership or authority to sell that third persons have a right, as against the true owner, to rely thereon. They may act in faith thereof, if they please, but they must rely upon the party with whom they deal, and look to him for indemnity if the title fails, or they be deceived or defrauded into a condition of responsibility."
Bliven was employed by the defendant as a mere clerk at $50 a week. They knew he had been previously employed at that salary and was out of employ at the time they took him. His mere possession, under such circumstances, of such an amount of stock, his indefinite statement of having received them, upon an indebtedness to him or his brother, from a person then deceased, and that they belonged to him or his brother, should have created suspicion as to the truth of the claim. It appeared upon two of the certificates that the statement was not true. They stood in the name of the deceased, Kilmer, indorsed by him, but not so as to confer title upon Bliven or anybody else, a fact which the defendants and their cashier discovered and informed Bliven at the very time they received the certificate and credited the stock to the Bliven account. The defendants had a special notice from Bliven himself that they were dealing with the assets of the estate of the deceased owner in the hands of an entire stranger without any indicia of ownership or apparent title in him, and upon his mere naked claim of title, contradicted by the papers themselves, in
or right of claim under any such representative. If a party has sufficient information to put a prudent man upon inquiry, and he neglects to make inquiry, the inference of actual notice is necessary and absolute. In the Soltau Case, 119 N. Y. 380, 23 N. E. 864, 16 Am. St. Rep. 813, the defendant advanced money to one Smith upon faith of a negotiable warehouse receipt in Smith's own name and possession; and yet Earle, J., said:
"Here the defendant could have inquired into the title of Smith before he took the rubber in pledge, and his loss is due, not to any wrong, neglect, or misplaced confidence of the plaintiff, but to his own neglect and abused confidence."
The mere fact of Bliven's possession of the assets of the estate of a deceased person, without apparent title, yet claiming it, was sufficient to put the defendants upon inquiry.
The learned court charged:
"If, believing that the stocks were delivered by Mrs. Kilmer to Bliven in the manner testified to by her, you nevertheless believe that Bliven took them to the defendants, representing to them that his brother, Henry C. Bliven, was the owner, and that the defendants, believing such representations, and without knowledge of what transpired between Mrs. Kilmer and Bliven, received the stocks and credited them on their books to the account of H. C. Bliven, Jr., and allowed a credit for their value, and afterwards, balancing the account, delivered them to the firm of Waterman, Anthony & Co., upon the transfer of Henry C. Bliven, Jr.'s, account to said firm on July 6, 1906, then you must find for the defendants."
To that portion of the charge the plaintiffs duly excepted.
We think that this was error. It confined the attention of the jury solely to the consideration of whether the defendants believed the representations of Bliven, and eliminated entirely the matters hereinbefore alluded to, which, in the absence of written indicia of ownership in Bliven, were in our judgment enough to put them to their independent inquiry.
The court declined to instruct the jury in any way that if Bliven obtained the possession of the certificates for a specific purpose, and then diverted them to his own use, he was a wrongdoer, and could convey no better title than he had, but treated the certificates as negotiable instruments, in spite of the fact that, when the defendants originally credited them to the Bliven account, the New York Central and the Rubber certificate were not negotiable, and that at no time was there written indicia of title in Bliven.
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event. All concur.
PEOPLE ex rel. JANES V. STILLINGS et al.
(Supreme Court, Appellate Division, First Department. April 8, 1909.) MUNICIPAL CORPORATIONS (8 402*)-CHANGE OF STREET GRADE-DAMAGES
GRADE DAMAGE COMMISSION-JURISDICTIOX.
Laws 1893, p. 1156, c. 537, as amended by Laws 1894, p. 1307, c. 567, established a commission to award damages to landowners for the change of grade of streets in the Twenty-Third and Twenty-Fourth wards of New York City, made pursuant to Laws 1868, p. 1982, c. 841, Laws 1874, p. 432, c. 329, Laws 1874, p. 831, c. 604, Laws 1876, p. 461, c. 136, Laws 1887, p. 937, c. 721, or Laws 1892, p. 685, c. 329, but limited the right, with certain exceptions, to changes of street grades shown on maps filed pursuant to Laws 1887, p. 937, c. 721, which authorized the park department to agree with a certain railroad company for the abolition of grade crossings and to file maps showing grades agreed on. Under the act of 1887, a map of grades agreed on was filed in 1889. Laws 1890, p. 965, c. 545, created the office of commissioner of street improvements for the Twenty-Third and Twenty-Fourth wards, with the powers there tofore had by the park department, and directed him to lay out the streets in those wards and file grade maps thereof. Held, that a change of grade of W. and St. A. avenues shown on a map filed by the street commissioner in 1894 under authority of the act of 1890 was not within the jurisdiction of the grade damage commission, grades established under that act not being mentioned in the statute conferring jurisdiction; nor could the street commissioner's map be deemed filed under the act of 1887 by reason of the transfer to him of the powers of the park department by the act of 1890 ; nor could the grades of W. and St. A. avenues shown by the commissioner's map be held to be established by a map filed under authority of the act of 1887 because a working map, never filed, from which the park department map of 1889 was taken, showed the same grades as the street commissioner's map, where the park de partment map made no change of grade in W. and St. A. avenues.
[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. $ 971; Dec. Dig. $ 402.*]
Certiorari by the People of the State of New York, on the relation of Henry E. Janes, as administrator de bonis non of Edward R. Janes, deceased, against William E. Stillings, chairman, and another, surviving commissioners, to review proceedings of the commissioners dismissing a claim for damages. Affirmed, and writ dismissed.
Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.
Barclay E. McCarty (Jared G. Baldwin, Jr., and John M. Harrington, on the brief), for relator.
Theodore Connoly (Francis K. Pendleton, Corp. Counsel, Terence Farley, and Stephen O'Brien, on the brief), for respondents.
CLARKE, J. The relator owns property lying between St. Ann's avenue, Westchester avenue, Brooke avenue, and East 149th street in the borough of the Bronx, and filed a claim for damages alleged to have been caused to said property by the elevation of the grades of St. Ann's avenue and Westchester avenue. The Port Morris Branch of the New York & Harlem Railroad passes under St. Ann's and Westchester avenues at this point. The sole question involved is
whether the change of grade damage commission has jurisdiction in the premises.
We have lately had occasion to consider the statutes under which the commission acts in People ex rel. Astor v. Stillings, 124 App. Div. 195, 108 N. Y. Supp. 903, and confine our examination to the precise point involved. By chapter 567, p. 1307, of the Laws of 1894, chapter 537, p. 1156, of the Laws of 1893, providing for the change of grade damage commission, was amended so as to read:
"All persons owning lands, tenements or hereditaments in 157th street, formerly Prospect street, or in any other street or avenue in the TwentyThird or Twenty-Fourth wards in the city of New York, which lands, tenements or hereditaments have sustained damages or will sustain damages, by reason of the change of grade of any street or avenue, which change was made in conformity with the provisions of chapter 841 of the Laws of 1868, chapters 329 and 604 of the Laws of 1874, chapter 436 of the Laws of 1876, chapter 721 of the Laws of 1887, or chapter 329 of the Laws of 1892,
shall be entitled to prove and recover the same from the mayor, aldermen and commonalty of the city of New York, as hereinafter provided; provided, however, that as to lands and buildings fronting on any street or avenue except fronting on 157th street, the benefits of this act shall be limited to the area within which grades are changed as shown on any map filed pursuant to chapter 721, p. 937, of the Laws of 1887."
It is conceded that unless the damage to the property in question was caused by change of grade shown on a map filed pursuant to chapter 721, p. 937, of the Laws of 1887, the action of the commissioners in rejecting the claim for want of jurisdiction was proper. Said act of 1887 authorized the department of public parks to agree with the New York & Harlem Railroad Company upon plans for the depression of the tracks and changing the grades of the railroads of the New York & Harlem Company, and carrying any streets in the Twenty-Third and Twenty-Fourth wards across and over, or under, said railroads, which plans when so agreed upon should be executed and carried out forwith by said railroad company at their expense, and the grades of the streets so agreed on for the crossing of said railroads. should be the established grades of such streets, and, in furtherance of the powers thereby conferred, the park department was granted the power to alter, amend, or revise any map or maps, plan or plans, hereafter or heretofore adopted by said department according to law, and to make and file new maps or plans to the extent deemed proper in order to show such alteration, amendments, and revision.
On the 9th of July, 1889, the park department and the New York & Harlem Railroad Company entered into an agreement for the depression of the tracks and changing the grades of that portion of the Port Morris Branch of the New York & Harlem Railroad, between East 156th street and the main line of said railroad at East 165th street, as shown on a map entitled :
“A plan for the depression of the tracks and changing of grades of that portion of Port Morris Branch of the New York & Harlem Railroad from East 156th street to the junction with the main line at East 165th street, temporary adjustment at Westchester avenue, and carrying certain streets, avenues and roads, boulevards, and parkways in the Twenty-Third ward over said railroad, showing the grades of the streets, avenues, boulevards, parkways for the crossing of said railroad, in pursuance of chapter 721 of the Laws of 1887. Dated New York, May 3, 1888."
This map was certified and acknowledged by the president of the board of parks on the 13th of March, 1889, and was duly filed. The agreement provided :
"That the grade of said railroad at Westchester avenue shall be altered so that the same shall be fifteen feet at said avenue, being the present grade at said avenue, said adjustment of the grade being temporary only.
And the map shows that there was no change in the grade of the streets made thereby at Westchester and St. Ann's avenues.
By chapter 545, p. 965, of the Laws of 1890, the office of commissioner of street improvements for the Twenty-Third and TwentyFourth wards was created. It was provided that he should have the exclusive power to locate and lay out, construct, and maintain all streets, roads, avenues, and public squares and places within the Twenty-Third and Twenty-Fourth wards of the city of New York, the exclusive right to construct and maintain all bridges, tunnels, sewers, streets, roads, avenues, public squares, and places located and laid out therein, and except only as thereinafter provided should have the exclusive power to establish the width and grades of all such streets, roads, avenues, and public squares and places, so laid out, and should exclusively possess, exercise, and be invested with all ihe powers, rights, duties, and authority in relation to said streets which, prior to the passage of the act, were conferred upor, possessed, and exercised by the department of public parks, except that the several surveys, maps, plans, and profiles of streets, roads, avenues, public squares, and places within the said territory which have been made, laid out, and filed by the department of parks by any law authorizing the same, should not be altered, amended, or modified by the commissioner, except by and with the concurrence of a majority of the board of street opening and improvements. The said commissioner was required within a time specified to complete the surveys, maps, plans, and profiles of all the streets, roads, avenues, public squares, and places located and laid out, or hereafter to be located and laid out, in said territory, showing the location, width, grades, and classes of said streets, roads, avenues, public squares, and places, and submit the same to the board of street opening and improvements for its concurrence and approval, and provide for the filing of the maps and profiles, and the said maps, plans, and profiles when so filed should not be subject to any future change or modification, but should be final and conclusive as to the location, width, grade, and class of the streets, roads, avenues, public squares, and places exhibited on such maps.
This act, which created this new officer, conferred upon him extensive powers in the establishment of a definitive street system in the vast territory within the Twenty-Third and Twenty-Fourth wards which was in process of development from a country to a city community. It provided for a time limit for the establishment of this street system and, when concurred in by the board of street opening and improvements, made the maps, plans, and profiles adopted final and conclusive. This law had been for some years upon the statute books when chapter 537, p. 1156, of the Laws of 1893 and its amendatory