For the prosecutor, Fox & Krieger (Harry Krieger, of counsel).
For the defendant, Francis D. Murphy, Anthony J. Armore.
Before Justices Parker, Donges and Colie.
Prosecutor, Frank M. Sheehy, instituted suit in the Essex Circuit of the Supreme Court to recover damages from the defendants for an alleged conversion of goods and chattels which were deposited by him in the warehouse of Standard Storage Warehouse Company. Subsequently, Standard Storage Warehouse Company, without the knowledge or consent
of prosecutor, moved the property to the warehouse of Liberty Moving & Storage Company, located in a nearby municipality. For a considerable period of time the whereabouts of the goods were unknown to either the prosecutor or to Standard Storage Warehouse. Upon the goods being located, negotiations were entered into between the prosecutor and Standard Storage Warehouse, or its representatives, looking toward a settlement, but the negotiations fell through and the prosecutor, Frank M. Sheehy, instituted suit against the legal representatives of Standard Storage Warehouse. The defendant served notice of motion for an order to compel the prosecutor to take back the goods and chattels, wares and merchandise and upon the return thereof and the payment of costs and nominal damages, for an order staying further proceedings. The matter was heard by the court which ordered "that the defendant's offer to return the said goods and chattels be accepted and considered as a restoration of the said property to the plaintiff, in mitigation of the plaintiff's damages in this case.
"It is further ordered, that the said goods and chattels be delivered by the defendant, Francis D. Murphy at his own cost and expense to the plaintiff, without cost or expense of anything to plaintiff, said delivery to be made within a reasonable radius from where the goods are now stored in Guttenberg, New Jersey, and that the plaintiff is further ordered to advise the said defendant, Francis D. Murphy, where the goods are to be delivered to, within ten days after the service of a copy of this order upon the attorney for the said plaintiff, said advice shall be deemed sufficient if in the form of a letter mailed to the attorney for the moving defendant.
"It is further ordered that the question of damages and costs be left open to await the outcome of the within suit.
"Exception is hereby allowed to the plaintiff in connection with the granting of this order.
"It is further ordered that the said defendant have ten days after the signing of the within order to answer the complaint herein."
In Wooley v. Carter et al., 7 N.J.L. 85, the Supreme Court held that when a trespass is ...