The bill of sale, or receipt, of the 14th of January. 1856, gave to the plaintiff’s assignors, Dean & Finnegan, an absolute title to one of the four billiard-tables. These .tables had been previously delivered to Dean & Finnegan and were then in their possession. The property, the right of possession, and the actual possession, were thus united in Dean & Finnegan, and the purchase-money for one of the tables was fully paid. Nothing remained but to designate, select, or ascertain their particular table out of the four, to complete the sale. Until this was done, the vendees could not claim either of the four tables as their absolute property. They could not identify the table purchased, or treat either of the tables as the one actually embraced in-the said bill of sale.
But the defendants were subject to the same disability in respect to their three tables. Their tables were not set apart, separated and distinguished. They had. the right to take three of the said tables and sell them upon their mortgage, upon the default of the mortgagor. .
I do not see, within the principle asserted by Judge Comstock in Kimbedly v. Patchin (19 N. Y., 341), why the plantiff’s *598assignors might not, at any time, while the tables remained in their possession, have taken distinct possession of one of them arid'sold and delivered it, or converted it to their own separate ust) and benefit, and, when the defendants came to foreclose their mortgage, why they might not have taken any three of said tables, leaving one for the plaintiff. The tables appear to have been sold at the same price, and there is no proof or suggestion that they were of unequal value. Neither party, in that view of the facts, could complain of the other for the exercising of his legal right in taking the proportion of the property which belonged to him. If this be so, when the defendants proceeded to foreclose their mortgage, they had ay right to take away only three of the tables. They admit in their answer that they took and carried away the said four tables, and caused the same to be sold and disposed of at public auction. When they thus took said tables from the possession of Dean & Finnegan, they had the right to select three of said tables, and the three which they first took into their possession then and there became, and were, by such act, thereafter their three of said tables — the three to which they were entitled. As they took the tables from the room or place where they were stored' or deposited—and they obviously must ¡have taken them separately and not at the same time— in legal effect they made their selection, from the four, of their three; and when they had taken and removed their three, they had: no right to. take the fourth. The fourth and last table, when'they took and removed it, belonged to the plaintiff. It was thus separated from the defendants’ three by their act'; and the taking and removal of such fourth table was a clear trespass. The plaintiff might thereafter'have maintained replevin for the table last taken possession of and removed by defendants. His title vested absolutely in this table immediately upon the exercise of the right of election so made by the defendants, and the sale was executed and thereupon consummated. Upon this view of the rights of the parties, there is no difficulty in sustaining this action. ‘ It is brought for" one of these four tables. One was demanded of defend*599ants. The demand was unnecessary. It was a conversion to take and remove the fourth table from the possession of Dean & Finnegan. It was a bald, naked trespass on their part to take it away and convert it. to their use. The judgment should, therefore, be reversed, and a new trial granted, with costs to abide the event.
Denio and Allen,- Js., dissented.
Judgment reversed, and new trial ordered.
Note.—The complaint was for damages for the conversion of a certain billiard-table. According to the Reporter’s understanding of the case, the court was of opinion that the complaint would have been good had it asked damages for an uncertain table, stating the facts which made it impracticable to designate which of the four tables was the one of which the plaintiff had been deprived. Proof of those facts entitles the plaintiff to his damages. Since, under the Code, it is immaterial whether the action would have, formerly, been labeled trover, or trespass, i -r trespass on the case, there is no objection to so amending the complaint m accordance with the proof as to show a good cause of action, though it would have fallen under one of those denominations, rather than under, another one which the pleader seemed to have in mind, and which, though less appropriate, is not inconsistent in its allegations with what would have been the better pleading. See remarks of G-omn, J., foot of page 610 post.