(dissenting):
The plaintiff was.a resident of the town of Babylon. On October 15, 1907, he hired from Philander Swezey and Ernest Swezey certain fishing nets belonging to them, together with their services as fishermen from the said 15th day of October until the 1st day of December, 1907, for which he agreed to pay them $400. The Swezeys were not residents of. Babylon. On the sixteenth day of ¡November the defendants forcibly took'up some of these nets which had been set and were being used for fishing purposes, and deprived plaintiff of the use of them for the remainder of the term for which they had been hired, ■ On the twenty-third of ¡November the. plaintiff began an action before a justice .of the peace of the town to recover damages by reason of the acts of the defendants, alleged to be unlawful, and recovered a judgment for $200, which on appeal was affirmed by the County Court. The defendants now bring the case by appeal to this court.
■ The fact of interference with the nets in question by the defendants is not denied. They seek to'show, however, that in so doing they acted as agents of the town; that the place from which the nets were removed was within the waters of the town ■; that the town officers had prohibited all persons other than residents of the town from fishing in its waters, and that the agreement between plaintiff and the Swezeys was a mere colorable one to enable the latter to fish in such waters in violation of said prohibition. Upon the trial of the action the defendants offered evidence as to the town’s title to the property where the nets were placed, which was the basis of the action of the town authorities. This evidence was excluded at the objection of the plaintiff, and this is one of the grounds of error'urged upon this appeal.
It seems important, in the first instance to. determine the character of the plaintiff’s right to the possession of' these nets and td use them for fishing purposes, for if this is unquestionable, then no injury resulted, even though such evidence were improperly excluded. If plaintiff had the right of possession and was using the nets for his own business, then, conceding that the claim of the town was-* well founded, the defendants had no right to interfere with such possession or use, for he was a resident of the town. The contract between the plaintiff and the Swezeys was sufficient to confer upon *385him an exclusive right to the use of these nets during the period of hiring. The relation between them lacked the essential elements of a partnership, for there was no community of interest in the property itself nor in the profits resulting from the use thereof, nor any mutual liability for losses. Plaintiff was obligated to pay the Swezeys $400 in installments during the period of hiring, whether the enterprise proved profitable or otherwise. If the profits should far exceed the expectation' of the parties, the entire sum over and above what the plaintiff agreed to pay for the use of the articles and for their services belonged to him, and they could claim ■ no part thereof. If the plaintiff desired, he could take these nets and lock them up in a storehouse and not use them for fishing purposes, and the defendants could not complain if they received the stipulated hire. The entire risk and the entire benefit of the enterprise belonged to the plaintiff alone. Uor is it any answer to his claim to say that the purpose and object of the contract was to enable the Swezeys to make their nets profitable by the irse thereof in waters in which they themselves were prohibited from fishing on their own account. If it be conceded, which we do not decide, that the town of Babylon had the right ,to limit fishing in the waters of the Great South Bay adjacent to its shores to residents of the town, there -was nothing which required the person carrying on fishing upon his own account to employ none but residents of' the town to assist him nor to hire the necessary utensils from residents of the town only. The acts of hiring other persons than such residents and other property titan that owned by such residents not being forbidden, the fact that indirectly a non-resident may have been benefited by' such an agreement as was made would not render it illegal. (Hoyt v. Cross, 108 N. Y. 76.) In that case the court, say : “It may be said that if the plaintiff can maintain this action he has successfully evaded the statute. * * * But it is frequently true that statutes enacted for the public welfare may be successfully evaded without any violation of them.” Possession of personal property with a special right in it is sufficient to maintain an action for conversion, although the general ownership and title may be in another. (Dillenback v. Jerome, 1 Cow. 294; Simon v. Simon, 38 App. Div. 85; Blanck v. Nelson, 39 id. 21.) We think, therefore, that the *386plaintiff can maintain this action, and that no prejudicial error was committed in excluding, the evidence upon which the town of Babylon based a claim to bar other than residents thereof from fishing privileges. . .
The only remaining question is as, to. the measure of damages. As a general rule,;in an action for conversion the plaintiff is. entitled to recovér as against a stranger to the title the value of the property converted, and this is so even when.he has only a special.or limited interest therein. . (Mechanics & Traders' Bank v. F. & M. Nat.. Bank, 60 N. Y. 40; Einstein v. Dunn, 61 App. Div. 195; affd,, 171 N. Y. 648.) After satisfying his own claim or interest therein, lie:is a . trustee for the general owner as to the surplus. (Marsden v. Cornell, 62 N. Y. 215.) No evidence was given in this casé of damages within this general rule* but plaintiff sought to recover the prospective . profits which he thinks that he might have made if his possession of - the nets had not been interfered with. . This evidence, which was received without objection as to its competency or materiality, was too vague, speculative and indefinite .to sustain the judgment. It appeared that the entire number of nets hired was one .hundred and five. On the sixteenth of. November the defendants removed thirty-four of them. The plaintiff showed that for. the five days '• preceding that date.the .total amount of sales of fish was one hundred and seventy-five dollars and sixty-four cents, or thirty-five dollars and thirteen cents a day. For the period succeeding November sixteenth it only averaged five dollars and forty-one cents per day, a difference of nearly thirty dollars a day. But as only thirty-four out of one hundred and. five nets were removed, and as it does not appear that there was any difference in the size or character of the nets, it would be. impossible to assume that the whole of the loss was chargeable to defendants’ .acts. If each net were supposed, to earn an equal amount, as the total earnings of seventy-one nets after. No vetiiber' sixteenth for .the remainder; of the term of. hiring was ninety-two dollars and seventy-six cents, or about one dollar and thirty-one cents a net, the. total loss from the- thirty-four nets taken away could not exceed forty-five dollars. But it appears that, after.November sixteenth there- were some days between that and :the first of December when it was. too stormy to fish at all, and the court may take judicial, notice' that. even on" pleasant days *387“ fishermen’s luck ” does not always run the same. There is no evidence that the defendants were actuated by any personal ill-will toward, the plaintiff, nor that their conduct was grossly negligent or oppressive. They proceeded under a mistaken notion as to their duty. Under such circumstances punitive damages may not be allowed. (1 Joyce Dam. § 127.) Beyond that it affirmatively appears that the justice intended only to allow compensatory damages.
The judgment of the County Court of Suffolk county and of the justice of the peace should be reversed and a new trial ordered, costs to abide the event.