Opinion
January, 1909.
Chilton Goldstein, for appellants.
Leopold W. Harburger, for respondent.
Taking the evidence in the view most favorable to the plaintiff, the loss of his horse, when in the control of the defendants as bailees, was due to the latters' omission to place the animal in a barn at night as they had agreed, with the result that it escaped or was stolen from the pasture. Under such circumstances an action of conversion will not lie. The element of an exercise of dominion over the property, to the exclusion of the true owner, is lacking, and a deviation from the contract of bailment only in the form of a negligent omission — as distinguished from an affirmative act indicating the bailee's wrongful assumption of control — is not a conversion. Walmsley v. Atlas SS. Co., 168 N.Y. 533; Laverty v. Snethen, 68 id. 522. There having been no consent upon the appellants' part to the determination of the plaintiff's claim upon a theory at variance with the pleadings, the recovery cannot be upheld.
GILDERSLEEVE and GUY, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellants to abide event.