42 268 133a 246. 42 268 75 428 42 268 86 308 42 268 lap133 42h 268 62ad145 42h 83 AD 268 THIRD DEPARTMENT, NOVEMBER TERM, 1886. For this error, judgment reversed, new trial granted, costs to abide event. LANDON, J., concurred. Judgment and order reversed, new trial granted, costs to abide event. LAURA E. THAYER, APPELLANT, v. STEPHEN GILE, Pleading what allegations establish a cause of action for conversion. 3 A complaint alleging, in substance- that on the 17th day of March, 1886, the plaintiff, as tenant in common with the defendant, was in the possession of a quantity of hay, and that the defendant, claiming to be the absolute owner thereof, then wholly converted the same to his own use, to the plaintiff's damage states facts constituting a cause of action, and requires that a demurrer interposed thereto, upon the ground of its failure to state facts constituting a cause of action, be overruled. - APPEAL from a judgment entered in Columbia county, sustaining a demurrer interposed to the complaint, on the ground that it did not state facts constituting a cause of action, and from the order upon which the said judgment was entered. The complaint states, in substance, that on and after October 1 1885, the plaintiff was a tenant in common with the defendant in some forty or fifty tons of hay, which were then in the possession of plaintiff in the buildings on defendant's farm; that the defendant subsequently fed up and used up some portion of said hay; that on or about March 17, 1886, plaintiff asked for a division and for the one-half of the remaining portion of said hay, and "defendant refused to make such division, and refused the possession of any portion of said hay to plaintiff, and then and there claimed that the plaintiff had no interest in said hay, and that he, defendant, was the entire and absolute owner of said hay, and otherwise converted the same to his own use to the damage of plaintiff in the sum of three hundred dollars." The defendant demurred to the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action against the defendant. THIRD DEPARTMENT, NOVEMBER TERM 1886. W. H. Silvernail, for the appellant. Nathaniel C. Moak, for the respondent. LANDON, J. This complaint is very crudely drawn. It is redundant in statement of immaterial matters, and it lacks definiteness and certainty with respect to material matters. Nevertheless, it states in substance: that on the 17th of March, 1886, the plaintiff, as tenant in common with the defendant, was in possession of a quantity of hay (what was remaining of forty tons), which the defendant then wholly converted to his own use, to plaintiff's damage, etc. How large a quantity, what share the plaintiff owned, and its value, are left uncertain. Still, since the defendant converted it all, he converted the plaintiff's share, and thus injured her to the extent of its value. There is an immaterial allegation of a demand of one half, but that is not an allegation that the plaintiff owned one half; also of a division, but the plaintiff could take her own share without demand of the defendant. The material allegation is, the defendant's conversion. It is still good pleading to state facts according to their legal effect, unless the pleader so narrates the facts as to show that he has mistaken their legal effect, which is not quite the case here. Thus, it was not necessary for the plaintiff to allege the details from which her tenancy in common, or possession, or the conversion by the defendant would follow as their legal effect. These details are rather in the nature of the evidence, to be adduced upon the trial to support these three allegations. A complaint must contain a plain and concise statement of the facts. No statement can be plainer or more concise than the statement that the defendant converted the plaintiff's hay. If the plaintiff gave a narrative of all the acts performed by the defendant in order to accomplish this conversion, it might be far from plain whether any conversion was in fact accomplished. The details of the transaction may very much obscure the fact of con version. Since the share of the plaintiff is not stated, it may be, that in order to establish conversion, the plaintiff will have to prove the loss, sale or destruction of the entire hay. (Lobdell v. Stowell, 51 THIRD DEPARTMENT, NOVEMBER TERM, 1886. N. Y., 70; Osborn v. Schenck, 83 id., 201; Dear v. Reed, 37 Hun, 594.) By using the word "converted" the plaintiff has concisely condensed in a single word the notice to the defendant that whatever it be may she intends to prove it. to prove necessary It is objected that the allegation of conversion is a conclusion of law and not of fact. Ordinarily, the narration of a transaction, whether by stating all the details of it or by stating these details according to their legal effect, is the narration of a fact. A statement of a conclusion of law is usually a statement of the right or liability flowing from certain facts. Thus, A lent B a dollar is the fact, B owes A a dollar is the law. A converted B's hay is a fact; B'e liability to A, the law. But from a given state of facts the law will pronounce that A converted B's hay. Is the statement of the conversion, therefore, the statement of a conclusion of law? It is rather the statement of a fact, ascertained by the rules of law. From the facts given, the law presumes the fact required, but the presumption is only a rule of evidence, and, by the application of that rule, the fact required is determined. The rule of evidence, by which the fact sought is found, is not the fact itself. The rule is the instrument or help through which the fact sought is discovered. If the rule is called a conclusion of law, then, by means of the conclusion of law, the conclusion of fact is established. Judgment reversed, with costs of appeal and of court below. The defendant may have usual leave to answer. LEARNED, P. J., and BосKES, J., concurred. MARY MCKAY AND OTHERS, RESPONDENTS, v. ALLEN LASHER AND EDWARD G. C. LASHER, APPELLANTS. Evidence only experts can express an opinion as to genuineness of a signature -1880, chap. 36— witness — impeachment of, by proof of contradictory statements. Upon the trial of this action the plaintiff, who sought to prove that the signature to a certain deed was not the signature of one James Clark, produced a note which was proved to have been signed and indorsed by Clark. A witness, THIRD DEPARTMENT, NOVEMBER TERM, 1886. who was not shown to be an expert, was directed to look at the signature and indorsement of the note, and was then asked and allowed, against the defendants' objection and exception, to answer "no" to the following question: "Assuming those to be the genuine signatures of James Clark, is that the signature of James Clark on the deed I show you?" Held, that the evidence should have been excluded. The alleged deed of James Clark had been proved, on June 13, 1885, by the subscribing witness, one Lawrence, before a notary public, and was given in evidence with such proof by the defendants. The plaintiff was allowed, against the defendants' objection and exception, to prove statements made by Lawrence that he did not have anything to do with this transaction of Clark's; that he did not know Clark at the time, and that he was willing to assist the plaintiff if she would pay his expenses. Held, that even if it could be assumed that Lawrence was to be regarded as a witness produced by the defendants, he could not be impeached, by proof of these statements, until he had first been asked whether he had ever made them. It seems, that this assumption could not be made. APPEAL from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Ulster Circuit. M. Schoonmaker, for the appellants. F. L. Westbrook, for the respondent. LEARNED, P. J.: One of the questions involved was whether the signature to a certain deed was that of James Clark. As charged by the court, the plaintiffs were entitled to recover, if the jury should find that the signature was not that of Clark. A note which was proved to have been signed and indorsed by Clark was produced. And a witness, who was not shown to be an expert, was directed to look at the signature and indorsement of the note. She was then asked by plaintiff's counsel: "Assuming those to be the genuine signatures of James Clark, is that the signature of James Clark on the deed I show you?" She answered "No." A similar question was put by plaintiff's counsel to another witness, not an expert, and a similar answer given. These questions were duly objected to by the defendant. Chapter 36 of the Laws of 1880 was intended to modify the former rule. Previously to that act it had been competent for experts to compare the disputed writing with genuine specimens, THIRD DEPARTMENT, NOVEMBER TERM, 1886. which had been lawfully given in evidence on the trial for other purposes. But it had not been competent to introduce genuine specimens merely for the purpose of comparison. The statute permits the introduction of genuine specimens merely for comparison, although they are not otherwise evidence in the case. But the statute has not changed the law as to the persons whose opinions may be given. Opinions are to be given by experts, as well on the question of handwriting as on any other questions. Persons, other than experts, are to testify to facts, not opinions. If one, who was not an expert, were permitted to give his opinion as to genuineness of handwriting, based merely on the comparison, at the trial, of the disputed writing with one proved to be genuine, he would be usurping the duty of the jury. They, by that same statute, may compare these writings. The evidence given should have been excluded. (See Peck v. Callaghan, 95 N. Y., 73.) This alleged deed of James Clark had been proved June 13, 1885, by the subscribing witness, Joseph C. Lawrence, before a notary public; and was given in evidence with such proof by the defendants. The plaintiff gave in evidence, against defendants' objection, statements made by Lawrence to a witness, that he did not have anything to do with this transaction of Clark; that he did not know Clark at the time. And again, by another witness, statements that he did not know Jaines Clark and had no transaction with him; that he was willing to assist Mrs. McKay, and would come up, if she would pay his expenses. The object of this testimony was to throw discredit upon the proof of the deed made by Lawrence before a notary public. Now, the most favorable view for the plaintiff, in endeavoring to sustain the admissibility of this evidence, is to claim that Lawrence was practically a witness for the defendants, and hence that his testimony, viz., the proof before the notary, might be attacked in the usual manner, by showing that he had, at other times, made contradictory statements. Assuming that this view of the position of Lawrence is correct, then we have the difficulty that, to impeach a witness in this manner, he must first be asked whether he had made the alleged contradictory statements. This is a most necessary and important |