It appears that plaintiff’s assignor had in May, 1911, sold under a conditional bill of sale to one Covert certain fixtures for a candy store. Covert was then a tenant of defendants, and installed the fixtures in the store which he had rented from them. In September, 1911, he absconded, leaving two months’ rent unpaid. Plaintiff claims that a demand was made for these fixtures upon defendants some time thereafter. Plaintiff also claims that his assignor *64received consent from defendants’ janitor at the end of August, 1911, to leave the fixtures in the store "for a reasonable time.” Plaintiff claims that the value of the fixtures which were left by Covert was some $700, for which defendants should be held liable by reason of their refusal to deliver them on request. Defendants admit that in April or May, 1912, when they procured another tenant for the store and found some of the fixtures claimed still in the premises, they sold all but a few, which are still in tire cellar, and realized $65 for them; the sale only having been made by posting a notice in the window that they were for sale, and defendants’ janitor testifying that, after seeing many customers, he had obtained the best possible price. Defendants offered at the close of the trial to turn the $65 over to plaintiff, and they claimed that they were always willing to deliver the few remaining fixtures now in the premises.
The verdict of the jury seems to me to be perfectly explicable on the theory, either that they did not believe that any demand had been made, or that any fixtures had been left upon the premises, other than the few admitted by defendants as having been sold by them and as still on the premises. While some errors seem to have been committed upon the trial, the material ones were in favor of plaintiff. The learned judge below charged the jury that, if demand had been made, defendants were chargeable with notice of the conditional bill .of sale filed by plaintiff; but I find no warrant for charging persons in the defendants’ relation to this property with knowledge of the conditional bill of sale by reason of its having been filed under section 62 of the Personal Property Law (Consol. Laws, c. 41).
There was some proof (of doubtful competency) that plaintiff’s assignors had been accorded permission in August to leave the fixtures on the premises after Covert had abandoned them for a reasonable time. That was surely exceeded as matter of law long prior to April or May, 1912. Even assuming that such permission had been given, defendants, as gratuitous bailees, would be liable only for gross neglience, and there is not the slightest indication of any such charge against them in the record. First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278, 19 Am. Rep. 181. Upon the record, assuming that plaintiff and his assignees were respectively the owners of the property at the times testified to, they could impose no obligation upon defendants by merely leaving their property upon the latter’s premises. No form of bailment, gratuitous or otherwise, can be thrust upon a person without his consent, and when property is practically abandoned by the owner upon another’s premises the latter owes the owner no obligation. First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278, 293, 19 Am. Rep. 181; Krumsky v. Loeser, 37 Misc. Rep. 504, 75 N. Y. Supp. 1012.
See, also (although there was a bailment in that case) De Lamos v. Cohen, 28 Misc. Rep. 579, 59 N. Y. Supp. 498.
In this view of the case, defendants quite properly showed the circumstances under which the fixtures had been left upon their premises, and tire testimony that Covert had left them there after absconding with two months’ rent unpaid was quite proper. Similarly, while *65no doubt the sale by defendants of some of the articles constituted the exercise of such dominion over them as to amount to a conversion, that inference should, to my mind, upon the facts of this case, be necessarily limited strictly to the fixtures actually sold. Proof of the price obtained for them on a fair sale, honestly conducted, with a view of obtaining the highest amount realizable, was admissible as some evidence of their market value at the time. Parmenter v. Fitzpatrick, 135 N. Y. 190, 196, et seq., 31 N. E. 1032.
I think that the judgment should be affirmed.