Kelly v. Mesier

The point on which the appellants sought to reverse the judgment and which they complain was not noticed in -the opinion delivered, by the court, is too plainly untenable to require extended discussion. When the original defendant, for whom the present appellants have been substituted, assumed to sell the plaintiff’s property without authority, the conversion was complete; and the plaintiff had a right to insist on being paid the value of the property *254converted. (Hanmer v. Wilsey, 17 Wend. 91; Otis v. Jones, 21 id. 394; Brewster v. Silliman, 38 N. Y. 423.) After the conversion the defendant could not, without the assent of the plaintiff, return the property converted, either to defeat the plaintiff’s action or to mitigate ■ the damages. The' plaintiff could stand on her vested right to recover the value of the property. When the appellants shall have paid the judgment herein, the title to the property will, hy operation of law, vest in them.

The motion should be denied, with ten dollars costs; '

All concurred.

Motion for reargument denied,-with ten dollars costs.