The action was by the plaintiff as receiver (appointed in proceedings supplementary to execution) of one Michael McMunn to recover (1) for services rendered by McMunn while
The jury also found that the defendant was only entitled to. credit on the services rendered for $168.72, the amount conceded by the plaintiff to have been paid; so that there is no merit in that portion of the appeal pertaining to the first 'cause of action.
The jury allowed on the second claim $32 for eight chases, and $120. for sixty blocks, making $152;. and this sum, added to $258.50, the balance due on- the first claim, is the amount of the ■ verdict without interest.
■ The defendant strenuously objected to that part of the recovery for chases and blocks. The proofs show that these were loaned .to the defendant, and delivered for his use, at the request of his son and business -manager, to the Kay Printing Company.’ It is claimed by the defendant that no demand was made for the return of the property loaned, and hence the defendant as bailee could not, in consequence of the omission, be sued for its value or in conversion. Esmay v. Fanning, 9 Barb. 176; Bates v. Conkling, 10 Wend. 389; Brown v. Cook, 9 Johns. 361; Feltman v. Gulf Brewery, 42 How. Pr. 488. The difficulty is that no such point was made in the court below either by motion to dismiss or otherwise, and cannot be urged for the first time upon appeal. Furguson v. U. S. Land & I. Co., 33 N. Y. St. Repr. 425; Gerding v. Haskin, 141 N. Y. 514, 520.
The objection having been waived by failure to raise it where it might have been obviated, and the defendant having failed to return the property, the conversion may be assumed to have been complete so as to. authorize the plaintiff to waive the tort and sue for the value on the implied assumpsit to pay. Terry v. Munger, 121 N. Y. 161; Hawk v. Thorn, 54 Barb. 164; Goodwin v. Griffis, 88 N. Y. 638, 639; 1 Wait’s Act. & Def. 405.
The refusal to charge as to value was proper, for there was conflicting evidence on that point; so was the refusal as to levy by the sheriff, as there was not sufficient proof on that subject to warrant the binding instruction requested. Nothing appears in the case to show that any obstacle prevented McMunn from delivering the goods, or hindered" the defendant from returning them. The exceptions to these refusals, therefore, present no error.
Upon the record before us the judgment must be affirmed, with costs.
Daly, P. J., and Bischoee, J., concur.
Judgment affirmed, with costs.