The first count in the complaint states that the plaintiff was the owner, and entitled to the possession, of the property in question ; that the property came into the possession of the defendant; and that he wrongfully converted it to his own use, and although often requested to do so, has neglected and refused to deliver the same to the plaintiff.
The second count states that one Wakefield was the owner of the property, and delivered it to the defendant, who received the same to be safely kept and cared for ; that while the property was in the defendant’s possession, it was sold and transferred to the plaintiff, of which the defendant had notice: and that afterwards, the defendant wrongfully disposed of and converted the same to his own use, and he neglected and refused to deliver the same to the plaintiff, although often requested.
The cause of action in each count, is one accruing to the plaintiff, by the unlawful conversion- of the property when the plaintiff was the owner of it—not one which accrued to a former owner of the property, by a conversion during his ownership, and which has been assigned to the plaintiff
On the trial, evidence was given on the part of the plaintiff tending to prove that Wakefield, when he owned the property, placed it in the possession and care of the defendant, and that about half an hour afterwards, on Wakefield calling upon the defendant for it, it could not be found, and was not therefore delivered to him; and that afterwards, Wakefield sold his claim against the defendant in respect to the property, to the plaintiff. And it was admitted by the defendant that when the constable went to serve the summons in this action, before serving it, he demanded the property of the defendant for the plaintiff, and the defendant said he knew nothing about it, and did not deliver it. On the part of the defendant, considerable evidence was given tending to disprove the receiving the property, and assuming the care of it, by the defendant.
Taking the facts to be according to the plaintiff’s evidence, I am satisfied he is not entitled to recover. If there has been *532any conversion of the property by the defendant, it took place while Wakefield was the owner of it, on the same day the defendant received it, and some time before the sale by Wakefield to the plaintiff. Of such a conversion, the plaintiff cannot avail himself under the complaint, not having alleged it, and the assignment of it to him. There is no evidence of a conversion subsequently. The demand of the property of the defendant, after the sale to the plaintiff, and the disclaimer of the defendant of any knowledge of, and his omission to deliver the property, it having been previously lost or stolen, and he not having possession of the property at the time, was not evidence of a conversion. A refusal to comply with a demand is only evidence of a conversion where an ability at the time to comply with it is proved. (Hawkins v. Hoffman, 6 Hill, 586.) There is no pretense, or ground for pretending, that the defendant, at the time of the demand, had possession of the property.
[Cayuga General Term, June 1, 1857.If there was no proof of the loss, or larceny, of the property, before the purchase by the plaintiff, the answer which the defendant made to the demand, connected with the fact that the property had been delivered to the defendant, might, perhaps, warrant the finding of a conversion. A denial of knowing any thing about it, with proof of the delivery to him, might warrant the inference of a present possession, and having the possession, a refusal to delivér would prove a conversion. (Bush v. Miller, 13 Barb. 481.) But the proof wholly repels such an inference, and disproves the possession of the property by the defendant at the time of the demand.
The judgment of the county court and that of the justice must be reversed.
Johnson, T. R. Strong and Smith, Justices.]