This action was brought to recover damages for taking and converting personal property. The complaint alleges that on the 9th day of January, 1900, Richard B. Biker was the owner of and was entitled to the possession of the property ; that on the 9th day of January, 1900, the said Richard B. Biker for a good and valuable consideration sold, assigned and transferred to the plaintiff, James Y. Lawrence, all his right, title and interest therein; that ever since said date the same James Y. Lawrence has been the owner and entitled to the possession of said property ; and that on or about the 5th day of February, 1900, the said defendant unlawfully and wrongfully took and carried away the said goods and. converted them to his own use, to plaintiff’s damage in the sum of $1,000.
The complaint was dismissed upon the ground that the action was brought for a wrongful taking and conversion of the property subsequent to the assignment, a cause of action accruing to the plaintiff directly, and the evidence showed that the wrongful taking occurred previous to the assignment, a cause of action in favor of his assignor.
If the plaintiff was restricted to a cause of action occurring after the ninth day of January, when the assignment was made, there was a *564question of fact which have might been determined for the plaintiff, and which if determined in his favor would have entitled him to recover. A review of the evidence shows that there was a conflict of testimony as to when the defendant took the property in question, which consisted of about 3,000 feet of North Carolina pine boards, out of which Biker had built a work shop or shanty, and of lumber and other property stored therein.
Mr. Walling, a witness for the plaintiff, testified : “In January of 1900 Mr. Biker was indebted to Mr. Lawrence for material. Some of that material was in that very shop at that time. * * * I can’t remember the date when I last saw that house, but the last time that I saw it it was full of material; that was before the fore•closure sale that took place oh the 6th of February. I.don’t know how long before; I think five or six days before.”
Cecil Lawrence also testified : “J subsequently saw that property just before the assignment on the 9th of January. I did go inside of it. In that property at that time there was North Carolina pine, two by four studding, tools of various description; there were ten to twelve kegs of nails, roll of tar papei1,' paints of various kinds, pick, shovel, half a barrel of oil and various other articles, a lot of patent stain and about 1,000 feet of white wood. I made a list of that. * * * ■ I first went to the building after the 9th of January. On or about the 10th of March, Mr. Wilson, the defendant, came- to our office, and I took Mr. Wilson to the building at Yoiikers Park. I found there at the building Mr. Banker. This building and this material was not there at that time. * * * When I made my list' of the material which I say was in that building, I couldn’t tell you the exact date; I think .it was some time in the month of January. I made that list while I.was over in the park, in the shanty. I think it was in January I made that list on a piece of paper.”
It is true that one of the plaintiff’s- witnesses and several of the defendant’s testified that the shop or shanty was torn down and the material and other property were taken by the defendant in December before the assignment, but there was not such a preponderance of evidence in favor of the defendant as to justify the court in taking this question from the jury.
In a case which of right is triable by jury, the court cannot take *565from that tribunal the ultimate decision of the fact, unless the fact is either uncontradicted or the contradiction is illusory, or where, to' use a current word, the answering evidence is a “ scintilla ” merely. (Bagley v. Bowe, 105 N. Y. 171.)
The plaintiff having taken the position upon the trial that the cause of action alleged was for a conversion subsequent to the assignment, he cannot now claim that the court should have disregarded the variance as to the time when the defendant took the property and permitted him to recover as the owner of the cause of action for the previous wrongful taking. But apart from the question whether the assignment of the property carried with it the right of action for conversion, and the question whether there was a fatal variance between the pleadings and proof, it is quite obvious that even if the defendant wrongfully took the property in November, or any time before the assignment, it did not change the title; it still belongs to .Riker, and his sale of it conveyed the property to the plaintiff. Every fresh interference with the property was a new wrong. The previous wrong on the defendant’s.part was no excuse for his failure to surrender the property to the plaintiff when demanded.
Conversion is alleged as a fact in the case, and under that allegation evidence of it was introduced without objection on the part of the defendant. The defendant concedes that before the beginning of the action and on or about the fifth day of February, he received a demand in writing, and the plaintiff’s attorney testified that he demanded the property on the twenty-first day of February, and that the defendant said in reply that he had ordered the shanty torn down and whatever materials there were there placed in the cellar of his house. “ I asked him to give us possession of these materials; he said ( no, I consider that they belong to me and are under my mortgage and I will not give possession of them.’ ”
The evidence as to the particular property in the possession of the defendant at the time of the several demands is extremely meagre. Proof was, however, given upon the trial which tended to show that some of the property taken by the defendant was then in his possession, and meagre as' the evidence is, it was for the jury to say what' property, if any, then remained in his possession, if they find as a fact that the property was taken by him prior to the assignment to the plaintiff.
*566We are, therefore, of the opinion that the learned trial judge erred in dismissing the complaint; that the judgment and order must be reversed and a new trial granted, costs to abide the event.
Goodrich, P. J., Woodward and Hirschberg, JJ., concurred; Jenks, J., absent.
Judgment and order reversed and new trial granted, costs to abide the event.