[After stating the facts.] — No question is presented for the consideration of this court, except upon the refusal to nonsuit the plaintiff. No other exception was taken upon the trial.
The first five grounds of that motion presented only questions of fact, and upon which there was conflicting evidence; and the court properly refused to withdraw their consideration from the jury. Their verdict has established all these questions in favor of the plaintiffs, and the simple question is presented, whether a sufficient demand was made for the ties in question before suit brought.
Mr. Vail, the director of whom this demand was made at the office of the company, was acting as the recognized agent of the company in this matter. The superintendent of the defendant, who took the ties, testified it was done by the direction of Mr. Vail, a director of the company. The demand upon him was therefore sufficient to authorize the plaintiff to maintain this action.
The defendant insists that detinue will not lie, as there is no proof that the ties were in the actual possession of the defendant at the time of the demand, or at the commencement of the action. And it is claimed that the proof shows that the defendant had parted with the possession of at least a portion of the property to the New York Central Railroad Company. This court have held the contrary of this. In Nichols v. Michael, 23 N. Y. 264, we said: “That when a person is- in possession of goods belonging to another, which he is bound to deliver upon demand, if he, without authority from the owner, parts with that" possession to one who refuses to deliver them, he is responsible in detinue equally with the party refusing. He contributes to the detention. It is the consequence of his own wrongful delivery.” The motion for a nonsuit was therefore properly refused.
The judgment should be affirmed with costs. ’
*569J. M. Parker, J.This action is brought to recover possession of two thousand one hundred and forty-six railroad ties, which, it is alleged, the defendant wrongfully detains from the plaintiff.
The question in the case arises upon an exception to the decision of the court upon the trial, denying a motion for a non-suit ; so that the inquiry here is, whether there is any evidence in the case upon which the jury were authorized to find a verdict for the plaintiffs.
The plaintiffs were under a contract with Deckers & Worthly (who were contractors to build defendants’ railroad and supply the materials therefor), to sell and deliver them seventeen thousand ties, such as should bear inspection of the chief engineer of the road. They did haul and deposit on a lot called the Warren lot, near a brewery and adjacent to the railroad, more than the requisite number, and on October 17, 1853, they had on said lot (after having delivered ten thousand six hundred and fifty) nine thousand eight hundred and eighty-two ties, out of which, according to a computation and agreement on that day made between the plaintiffs, Deckers & Worthly, and the secretary of the company, it required seven thousand three hundred and sixty-nine to make up the full number of seventeen thousand. Of this required number, three thousand eight hundred was for the estimate for September, 1853, and the balance for rejected ties,, and deficiencies for the estimates of previous months. There were, therefore, upon the lot two thousand five hundred and thirteen, over and above enough to fulfill the contract between the plaintiffs and Deckers & Worthly, provided they would all pass inspection. On the day above mentioned the secretary of the company, with the consent of Decker & Worthly, paid the plaintiffs the amount to which the three thousand eight hundred would come, less ten per cent., for which he agreed to be accountable, and- the plaintiffs authorized the company to take the seven thousand three hundred and sixty-nine, which it ajtpears included all that would be required to complete the road.
Between that day and February 22, 1854, when the road was opened, the company proceeded to take ties from time to time from the Warren lot. On August 8, 1854, they took two thou*570sand one hundred and forty-six ties from that lot, some seventeen hundred of which were sold to the Central Railroad Company, and the residue piled near the depot and used for repairs. These the plaintiffs allege were over and above the seven thousand three hundred and sixty-nine which defendants were authorized to take, and whether or not they did so is the ques-. tion of fact in this case.
There is no direct and positive evidence that the defendants took more than the seven thousand three hundred and sixty-nine to which they were entitled, but it appears that after the taking of the two thousand one hundred and forty-six in question, only a few hundred were left scattered about on the lot. So that the surplus two thousand five hundred and thirteen were mostly taken by some person or persons. It appears that no person had authority from plaintiffs to take any from the lot except the defendant, nor wras it shown that any other person did take any; but it appeared that defendant was engaged from October 17, 1853, to February 22, 1854, in taking ties from the lot for the road, from time to time, though how many it so took does not appear.
It appeared from the estimates introduced in evidence by the defendant, that the whole number required for the road was sixteen thousand eight hundred and eighty-two.
It is argued by the plaintiffs’ counsel that the jury had the right to conclude that the defendant had used up the seven thousand three hundred and sixty-nine, which would make up the seventeen thousand, by February 22, 1854, and therefore that the two thousand one hundred and forty-six taken in August must have been a portion of the two thousand five hundred and thirteen surplus which it had no right to take, especially as but about the difference between these two numbers was left on the lot after the tw) thousand one hundred and forty-six were taken; and that this conclusion is strengthened by the fact that the two thousand one hundred and forty-six were not needed nor used for the construction of the road, and hence could not he included in the seven thousand three hundred and sixty-nine which according to the estimate were all or nearly all needed.
*571It is impossible to say, in the absence of all evidence, as to the number taken by the company, between October, 1853, and February, 1854, that there was no foundation for such conclusion. It was therefore a case for the jury, and the nonsuit was properly denied.
But the defendants insist that the evidence shows that the ties in question were piled, when taken by defendant as complained of, within the bounds of the road, and therefore were in defendant’s actual possession, from which the presumption arises that the title was in the defendant, and that the plaintiffs did not overturn this inference by evidence.
It is by no means clear that the ties were piled within the bounds of the railroad; but if they were at the time when taken up and carried to or near the depot, it is shown they had, by some person unknown to the plaintiffs, and without their authority, been removed from a place farther back on the lot to a place near the track, which fact, at least, tends to rebut the presumption of title arising from their. being in defendant’s possession, by being piled within the bounds of the road. Moreover the whole case proceeds upon the assumption on both sides, that the ties in question are a portion of those furnished by plaintiffs to Deckers & Worthly, and that unless they are a part of the seven thousand three hundred and sixty-nine, which plaintiffs gave the defendant liberty to take, they are plaintiffs’.
It is said again by the appellants’ counsel that there is no evidence that the ties were in the possession of defendant, at the commencement of this action.
It is shown that the defendant took them on August 8,1854/ and it appears from the reccord that the suit was commenced on August 9, 1854. How, though it appears that the larger portion of them was sold to the Central Railroad Company, it is not shown when, and it will not be presumed that this was before the commencement of the action.
Without considering what would have been the effect of such want of possession, if it had been shown, it is a sufficient answer to the objection now made that it was not shown upon the trial. Also that no such objection was taken at the trial.
*572The record does not present any such error as calls for a reversal of the judgment. It must therefore be affirmed.
All the judges concurred except Bocees, J., absent, and Porter, J., not voting.
Judgment affirmed, with costs.