[After stating the facts as above.]— The question presented upon this appeal is one which involves considerations of considerable nicety, and as to which as far as I have been able to learn there have been but few decisions. Upon the argument of the appeal no authorities were cited by counsel, nor was our attention called to any elementary principle which seemed, to be entirely applicable.
The case of Fitch v. Rathbun (61 N. Y. 579) settles the question, if ' any authority were needed, that a married woman by mingling her own household furniture with that of her husband in the house in which they both live does *67not thereby lose the title to such furniture, and may maintain an action for the conversion thereof. The plaintiff in this action, therefore, could maintain this action against any person who had converted her property, and the only question is: did the acts of the defendants render them liable in this action ?
In the case of Dudley v. Hawley (40 Barb. 397) the question of what amounts to a conversion, and under what circumstances an innocent party may be held liable, is discussed at length, and a large number of authorities are cited and criticised, and the rule as laid down is that, “ while no liability is incurred by the purchase or acceptance of goods in ignorance of the title of the true owner, unless they are subsequently disposed of to a third person, or appropriated to the use of the vendee or bailee, yet that the benefit of this principle cannot be claimed without proving that they came to his hands through a delivery made by the wrongdoer, and without any participation in the tort of the latter other than is necessarily implied in innocently receiving that which there is no right to give. And the better opinion would seem to be that ignorance of the defendant of wrong done by the person from whom he receives the goods will not protect him from responsibility for subsequent acts amounting to a conversion or asportation, although done in good faith and without a knowledge of the true state of the title, nor unless his share in the transaction has been purely passive, ■ and has been limited to accepting and paying for the goods in the usual course of business.”
The case of Thorp v. Burling (11 Johns. 285) seems to be very nearly the same in its facts as the case' at bar. In that case the question was whether a eartman who, at the request of a party, went with him to a stable and took goods there and put them on his cart and carried them away and delivered them to the party employing him, was liable in an action of trover for the goods. Spencer, J., in delivering the opinion of the court, observed: “ I consider him as much a trespasser as the other defendants; he was *68one of the persons who removed the plaintiff’s goods from the place where they had been deposited by the plaintiff’s agents. It is true, he did this at the request of other persons, but he was by no means bound to obey their orders or yield to their request. He was a voluntary agent, and an actor in an unlawful transaction. He could not but perceive that it was a hazardous enterprise, from the large assemblage of people on the spot. I know of no protection afforded by the law to the defendant as a eartman on account of his public employment; he cannot claim the exemption of a ministerial officer, who has a warrant to do a lawful act from a magistrate or court having jurisdiction to grant such warrant, in which ease the officer would be bound to obey, and the law would protect him; here the defendant was not bound to obey, and he consequently acted at his peril. Had the other defendants actually reduced the goods to their possession, and had the eartman then received the goods from them to carry, he would not have been liable. As the case stands I think he certainly is responsible with the other defendants.”
The most favorable view of the law for the defendants in this case which can be taken is, therefore, that they must show, in order to excuse themselves, that the goods came to their hands by delivery from the wrongdoer, and without any participation in the tort of the latter. The evidence, however, shows affirmatively that they did actually participate in the removal of the goods in the tort of the husband. The reducing of the goods to the possession of the husband , was done by the act of the defendants in taking them from the house and carting away, and brings the case precisely within the rule laid down in Thorp v. Burling (supra). ■
It is true that the learned judge who delivered the opim ion in that case states that the eartman could not but perceive that it was a hazardous enterprise from the large assemblage of people on the spot; but this circumstance does not seem to have had any effect upon his decision, because the question of liability is stated by him to depend *69upon an entirely distinct fact, viz., that he was an actor in an unlawful transaction.
Applying the principle which is thus derived from the cases to the case at bar, the liability of the defendants seems to be established, they having been actors in a transaction by which the plaintiff’s goods were taken, and they not having received the goods from the husband after he had reduced them to possession.
The judgment should be affirmed.
Van Hoesen, J.On the argument I put this question / to the counsel: Suppose that these goods had-been delivered by the husband to the Hudson 'River Railroad Company, would' the'company have been liable in conversion if it had transported the goods to one of its stations ?
I think the company would sot have been liable, because j in that ease the goods, would have been reduced by the |! husband to his owd-qpossession before the delivery of them ■' to the company-; and, as Judge Van Brunt has said, a j carrier is not "guilty of a wrongful conversion who merely ¡ carries goods which before their delivery to him have been j reduced by a trespasser to his own possession.
In this case the plaintiff sues in trespass for a wrongful taking, and there is evidence to show that the taking was under circumstances that must have aroused suspicion in the mind of Strahan, who actually removed the goods, as to the right of Mead to order the carrying away any articles that belonged to the plaintiff. Strahan knew that the plaintiff and Edwin Mead were husband and wife, and the fact is proved that some of the goods were bought by the plaintiff from Jack and Strahan, the defendants. Strahan swears that Mead begged him not to tell the plaintiff where the goods had been taken, and this at the very time they were carried away. Such a request at such a time certainly must have dispelled the belief that the husband, in ordering the removal, was acting as the agent of the wife. This case is therefore not within the decision in Church v. Landers (10 Wend. 79).
*70The defendants knew that Mead was taking the goods in disregard of any claim .that the plaintiff might have had upon them, and they assisted him in taking them.
»
Judgment affirmed.