¶1Upon the evidence the justice’s court was authorized to find, .and we presume did find, that the defendant, who was one of the members of the musical organization, and co-owner with the plaintiffs of the musical instrument, took and carried away the instrument without any intention of returning it to the band association. He did not return it upon proper demand, .and made representations which the court could properly hold to be evasive. The case was thus presented where one tenant in common of personal prop■erty makes an exclusive appropriation of it to himself in hostility to the right of his co-tenants to its possession and enjoyment. In such case his eo-ten.ants can maintain an action against him. Osborn v. Schenck, 83 N. Y. 201, .and cases there cited. Judgment affirmed, with costs. All concur.
5 N.Y.S. 523
Flint v. Frantzman
Decided May 27, 1889
New York Supreme Court · decided 1889-05-27
Action by Cyrenius Flint and others against Orris Frantzman, for the alleged conversion of a certain musical instrument, called a “tuba.” The ac-tian was originally brought before a justice of the peace, who rendered judgment for plaintiffs. Defendant appealed to the county court, and the cause was removed to the supreme court at special term, where the judgment of the justice was affirmed, and defendant appeals.
Relies on Osborn v. . Schenck
Decided 1889-05-27