I regret that I must dissent from some of the views set forth in the leading opinion of the court.
The action is to recover $2,892.50, being the value of a small trunk and contents, which the plaintiff alleges the defendants wrongfully took and converted to their own use. The facts are substantially as follows :—The plaintiff was a passenger in one of the defendants’ steamships (the Helvetia) from Liverpool to this port. On the arrival of the vessel here, it was found necessary to quarantine her, under our laws; consequently, the passengers were sent, with all their luggage, to the steamship Illinois, then moored in the lower bay. At the expiration of some eighteen or twenty days, and after quarantine was perfected, the defendants sent their steamtugs and brought the passengers and their baggage to the city. The plaintiff had the small trunk— the one out of which this controversy arose—in her possession, and was guarding it herself, as she had done all the voyage. The defendants took the trunk from her against her will, and placed her in one tug and her property, together with this trunk, on another, to send them to this city. This was the last she saw of her trunk, or the articles it contained. She demanded her property; the demand was refused. Hence this action. The complaint does not declare against the defendants as carriers, but simply against them for unlawfully taking and converting the property ; and I hold that, under the circumstances, this is the proper form of pleading.
The defendants answer that they are carriers for hire, but urge, against a recovery, that an action of trover will not lie for the mere omission of the carrier to deliver, as where the property has been stolen or lost through negligence, and so cannot be delivered to the owner. The remedy, their counsel says, in such cases, is assumpsit, or a special action on the case, and not trover, as he alleges this action is. How, section 69 of the Code has abolished all distinctions between the mere forms of actions, and every action is now a special action on the case (Goulet v. Assler, 23 N. Y., 228). The Code (§142), requires only a *325plain and concise statement of the facts, constituting a cause of action, without repetition, and a demand for the requisite relief. Now, this complaint states, concisely and clearly, that her property" was taken from her possession without her consent, and that, although she demanded a return of the same, yet it has not been returned, and she asks that the court award her its value. You may designate the t action as an action in trover, or in assumpsit, or one on the case, or whatever else you may please to call it. I hold that nothing more is requisite in the complaint; and although some may cling to old and obsolete forms of pleading, yet to the plain mind (I mean those who seek speedy and substantial justice), and according to the law of the day, this is all that is required.
The learned counsel for the defense, in his effort to establish in the mind of the court that the form of action in this case should have been assumpsit and not trover, cites a synopsis of the case of Ross v. Johnson, cited (from 5 Burr., 2825) in Abbotts’ Digest, vol. 5, p. 243, pl. 12, forgetting this fact, that that authority is a century old, and that we have changed much in the forms of law pleadings since then, as well as in all. things else. But even in the case of Ross v. Johnson, which I find reported -at length in the second volume of Lord “Mansfield’s decisions by Evans, that most learned judge declares his disapprobation of nonsuits founded upon objections that have no relation to the merits of the action.
Moreover, Lord Mansfield said in that very litigation that the form of the suit should have been an action on the case, which form of action the suit at bar is, and I hold therefore, that the authority in Ross «. Johnson is an authority for the plaintiff. The action herein is not brought especially against the defendants as carriers. The complaint is simply for the- taking and conversion of the plaintiff’s property; facts which, without reference to form, in themselves constitute a substantial cause of action ; and I hold that the court, under such a complaint, taking it in connection with the answer and the proofs in the case, *326would be justified, without allegations that they were carriers, in holding them responsible.
Let us examine briefly what one of the best elementary writers say s'as to the form of pleadings adopted in the complaint. Hilliard, on remedies for torts, writing in 1867, says: “In trover against carriers the declaration need not set forth the duty of the defendants as carriers, if it sets forth his negligence and loss and this rule was held in the case of Wright v. McKee (37 Vt., 161), and was also applied, in the case of Crouch v. London, &c. (14 Eng. L. & Eq., 498), and these authorities are gleaned from reports adopted by States where a much stricter line of pleading is applied than in our State since our Code took effect; and I certainly can find no authority wherein this liberal rule is condemned.
The only exception that can be taken to the proceedings had before the judge below is, that in his charge he discussed at some length the law of carriers. Now, while such a discussion could perhaps have been dispensed with, has the course pursued by that learned judge in this respect, injured the defendant’s case? It certainly has not, and the best evidence of his not injuring defendant’s position before the jury in his charge is the fact that n.t a single exception to that charge was taken. Indeed, the answer, and the whole theory of the defense was, that the defendants were carriers, and were not answerable as such for this special property, and it was only at the request of the defendants’ counsel, that the court applied the law of carriers at all; so that it would be unjust to have this court apply that rule to the plaintiff in the argument here, when it is clearly seen that the plaintiff’s counsel protested against its application throughout at the trial below. Nor can the defendants request the court, at the trial of the issues of fact, to apply a rule of law in their favor against the will of the plaintiff, and then, in the appellate court, if that rule is improperly applied, take advantage of its improper application here. But this the defendants’ counsel does' not seek. In his brief he intimates that the complaint is broad enough to hold the defendants as carriers, *327and in Ms answer he relies upon his clients’ rights as such carriers; and on the trial at circuit he requested that the rule of law relating to carriers be strictly applied by the court, and argued that defendants should not be held liable for money or valuables which they did not, in their agreement with plaintiff as carriers, undertake to protect or forward. And the learned judge did apply the rules as requested, and that in the strictest sense of the word, for he charged the jury that plaintiff could only re over for necessary wearing apparel, and that if she had more money in the trunk than enough for traveling expenses, she could not recover the money over. If the complaint had been especially drawn so as to enable the plaintiff to recover against the defendants as carriers, the case could not have been more fully developed on the trial below than it has been. The plaintiff simply declared for taking and converting property. The defendants’ answer, “we are carriers for hire between this port and Liverpool—we did agree to carry you and a certain quantity of baggage to New York, but you had money and property in that trunk of which you concealed from us a knowledge, and which, under the laws of this State, we, as carriers, are not responsible for, and therefore you cannot recover.” Now, as I have stated before, the learned judge allowed this theory of the defense to go to the jury, and charged the law of carriers correctly, and that in favor of the defendants ; and he submitted the question of necessary wearing apparel and the proper amount of money for traveling expenses to the jury. It will be said, however, that under the complaint (the complaint being for taking and converting) final judgment cannot be granted. There are two answers to this proposition. First, the complaint is broad enough to hold the defendants as carriers, because it was optional with the plaintiff to treat the defendants as common carriers, and sue in case for breach of duty, or to ignore their character as carriers, and to sue for conversion. He has chosen the latter, and the action lies. Second, if not broad enough, section 173 of the Code allows the court—I mean the appellate court and that of its own motion—when it *328serves the ends of substantial justice, to make the pleadings conform to the facts proved on tire trial.
The court of appeals applied this rule in the case of Pratt v. Hudson River Railroad Company (21 N. Y., 305); and the general term of the supreme court allowed a similar amendment in the case of Clark v. Dales (20 Barb., 42). Hot only was this sound rule adopted in the above cases, but it was strictly applied in all of the following cases: Coleman v. Plaisted, 36 Barb., 272 ; Bowdin v. Coleman, 3 Abb. Pr., 431; Harrower v. Heath, 19 Barb., 331; Cady v. Allen, 22 Barb., 388; Bates v. Graham, 1 Kern., 237. This cl octrine was also established in' this court in the case of Foot v. Roberts, decided at general term, July, 1868. In that case, Mr. Justice Monell, in a very clear opinion, establishes beyond a doubt that the court has a right, in all cases where it serves the ends of substantial justice, to make the pleadings’ conform to the proofs.
It was “in furtherance of justice,” as the statute declares, that such a section was added to the code. I mean the- section enabling the appellate court to make such amendments; and surely a case never arose, and never can arise, wherein the statute can be applied and the ends of justice better subserved, than in this case. Let me ask, “ What is the amendment, if any, required here ?” Why, it simply requires the words “ as carriers,” to be added after the word “ defendant,” on line three of folio four of the complaint. It is conceded that in whatever light we may view this case, all the facts were fully developed on the trial, so as to enable the court to say whether the defendants shall be held liable as carriers, or for taking and converting, and there end the litigation. The learned judge below allowed the defendants and the plaintiff to place all the facts in the case in the fullest light before the jury, and allowed the jury to’ pass upon those facts; and if there were a thousand trials had hereafter, matters touching the property in controversy could not be made plainer. If this be so, why should the parties be subjected to a new trial, perhaps to a long and exceedingly expensive litigation, when this court sitting here in banc can apply a remedy ?
*329Section 173 of the code, relating to such amendments, was designed among other things, to shorten litigation, to put an end to suits; and the courts in all cases, where the rule can be applied, should apply it strictly. I think, however, that the views set forth in the first branch of this opinion, are the correct views, and that the complaint, as it stands, is broad enough, and justifies the verdict of the jury. It is of little consequence whether the defendants took the property as carriers or as individuals, it is enough to sustain the action, that they took the property.
What is the object of plain pleading ?
Why, it is to prevent, among -other things, several actions from being brought for the same cause; and when the cause of action is so plainly stated that the facts can be developed at the trial and passed upon in such a form as to end the litigation, and prevent new suits for the same cause, this is all that is required, and no one will contend for a moment, after having examined the pleadings in this case, and after so full a development of the facts and circumstances on the trial below, that another action of any kind, especially an action against the defendants as carriers, could be maintained. I have had no opportunity of consulting with my associate justices, who heard the case (the papers having been submitted to me). Perhaps a discussion of the law and facts by them in my presence, or a knowledge of their views, might, have induced me to concur with them about the application of the rules of law, but in the absence of such knowledge, and entertaining the views of the law applicable to such cases which I now entertain, I am for affirming the judgment with costs.
Judgment reversed, and new trial ordered.