Second Department, May, 1908. [Vol. 126. accordance with the views herein before expressed, and it is unnecessary to consider further the questions presented in reference to the charge. The only other questions involved on the appeal relate to the amount of the verdict and the admission of evidence on the question of damages. The plaintiff was permitted to show that the deceased had earned $5,000 a year and upwards; that he received $1,500 a year as secretary of the Navy League, and that his other earnings were derived from an agency for the sale of certain patent rights and from the promotion of mining enterprises. The appellant argues that a part of the earnings from the promotion business was derived from the investment of capital, and that hence the proof of earnings from that source should have been excluded. I think a fair construction of the testimony of the plaintiff on that subject is that whatever stock the deceased had in the enterprises which he promoted was allowed him for his services, and did not represent money actually invested. She plainly testified that none of the earnings were derived from dividends on said stock, and the court charged the jury, at the defendant's request, that they could not consider as a part of the earning capacity of the deceased his income from any capital invested by him. Adopting the construction of the testimony contended for by the appellant, I think no error was committed in receiving it or in refusing to strike it out. The twɔ cases principally relied upon by the appellant are Read v. Brooklyn Heights R. R. Co. (32 App. Div. 503) and Hewlett v. Brooklyn Heights R. R. Co. (63 id. 423). Those cases were decided on the authority of Masterton v. Village of Mount Vernon (58 N. Y. 391). That was not a death case. While it was held that the plaintiff could have proven the nature and extent of the business in which he was engaged, the part transacted by him and, if he could, the compensation usually paid for such services, he could not prove earnings derived partly from his own efforts, partly from efforts of his partner and partly from invested capital. The two cases referred to supra were death cases. In the Read case it was held error to admit evidence of the profits derived from a partnership engaged in the contracting business to which it did not appear that the deceased contributed anything except the money invested; and in the Hewlett case it was held error to admit evidence of the amount App. Div.] Second Department, May, 1908. received per load for garden truck produced by a market gardener on a farm which he owned. It is clear that such evidence had no bearing on the capacity or earning power of the deceased. * The question for the jury on this branch of the case was the pecuniary value of the life of the deceased to his next of kin. Upon that question anything bearing on the "character, qualities, capacity and condition of the deceased, and * *the age, sex, circumstances and condition of the next of kin" was relevant. (Lockwood v. N. Y., L. E. & W. R. R. Co., 98 N. Y. 523.) In Ehrgott v. Mayor (96 N. Y. 264, 276) the case of Masterton v. Village of Mount Vernon (supra) is distinguished. The value of a life cannot be determined with the mathematical precision with which a man's earnings can be ascertained, and any fact shedding light on the question is relevant. In the case of a man receiving a professional income or a fixed salary the question of invested capital does not enter, but the men most likely to accumulate property for their next of kin are those who use invested capital. They leave the capital on their death, but cannot leave the capacity which makes its use profitable. Of course, income from investments alone cannot be considered, but every fact bearing upon the capacity of the deceased, whatever his occupation, is admissible, and cannot be excluded merely because the particular ability was to accumulate money by the use of money. The evidence in this case was admissible, and as limited by the charge presents no error. The verdict of the jury was $27,500. The deceased was in his sixty-second year, in good health, and had an expectancy of life of twelve and twenty-eight one-hundredths years. He contributed to the support of his wife $2,500 to $3,000 a year; he left a widow and three daughters, one of them unmarried. While the verdict was large, perhaps fully as large as the proof warranted, it cannot well be said that it was not sustained by the proof, and I advise that the judgment and order be affirmed. Present WOODWARD, HOOKER, GAYNOR, RICH and MILLER, JJ. Judgment and order unanimously affirmed, with costs. Second Department, May, 1908. [Vol. 126. DAVID R. LONGENECKER, Respondent, v. JOHN R. KUHN and Others Appellants. Second Department, May 1, 1908. Conspiracy conversion - failure to connect attorney with conspiracy —when mortgagee not liable for conversion. Evidence in an action for a conspiracy to deprive the plaintiff of his property by converting it examined, and held, insufficient to connect a defendant attorney at law who had acted for both parties in drawing bills of sale with the conspiracy. Where the vendee of a business has secured the payment of the purchase price by a chattel mortgage and subsequently abandons the business and refuses to pay the rent of the premises, he cannot hold the mortgagee for conversion in taking possession of the property, as he had that right under the mortgage. APPEAL by the defendants, John R. Kuhn and others, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 16th day of March, 1907, and also from an order entered on the 15th day of March, 1907, denying their motion for a new trial made upon the minutes. John C. McGuire [John J. McGinnis with him on the brief], for the appellants. Alfred T. Davison, for the respondent. MILI ER, J.: This is an action for a conspiracy to deprive the plaintiff of his property by converting it to the use of the defendants or some of them. The facts, though there is but little conflict in the evidence, are somewhat complicated. The defendant Fraim, an old man over seventy years of age, owned a dental business, which was conducted under the name of Fraim & Nephew. The plaintiff was his nephew, and had learned the business with him, and for many years had been associated and lived with him, but at the time of the transactions involved in this suit they were living apart and the plaintiff was conducting an independent business. The defendant Kuhn was and for many years had been the friend and lawyer of both. The defendant Firth was employed in the business by the defendant Fraim at the time of the commencement of the negotiations leading up to this suit. In March, 1903, the defendant Fraim App. Div.] Second Department, May, 1908 sold the business to the plaintiff and executed to him a bill of sale thereof, taking back a chattel mortgage to secure the payment of a note of $450, given for the purchase price. The defendant Kuhn drew the papers, acting for both parties. In July, 1903, the plaintiff, having meanwhile become dissatisfied, executed a bill of sale retransferring the property to the defendant Fraim, and the defendant Fraim executed a satisfaction of the chattel mortgage, the defendant Kuhn again preparing the papers and acting for both. The parties differ as to that transaction only in this respect, viz., the plaintiff asserts that he went alone to the defendant Kuhn's office to execute the bill of sale; the defendants say that both were there together; the plaintiff says that the papers were never delivered; the defendants assert that they were. It is undisputed that shortly afterward the plaintiff concluded to resume control of the business. He says he was advised by the defendant Kuhn that the papers not having been executed were a nullity; the defendant Kuhn says that he advised him to the contrary; that the papers having been delivered it would be necessary to have new ones executed, and that he had better take charge of the business for a while and to make sure whether he wanted to go on with it before having the papers executed. The new bill of sale and the satisfaction of the chattel mortgage were left in the possession of the defendant Kuhn. The plaintiff did resume control of the business, retaining the defendant Firth in his employ until August or September, 1904. Prior to the July transaction he had paid to the defendant Fraim $100; subsequently thereto he paid him $150 more. In August or September, 1904, the plaintiff again became dissatisfied, and here again there is some conflict as to precisely what occurred, the defendants asserting that the plaintiff surrendered the business and the property to the defendant Fraim, and the plaintiff denying it. At any rate the plaintiff went away to visit his son at Saranac Lake. Before going he wrote the landlord the following letters: "MR. BOGART: "BROOKLYN, N. Y., Sept. 26, 1904. "DEAR SIR. You will collect the rent of 301 Fulton St. from Fraim and Nephew as heretofore, as I shall assume no responsibility in the future. Yours &c., "D. R. LONGENECKER." "MR. BOGART: Second Department, May, 1908. [Vol. 126. "BROOKLYN, N. Y., Oct. 5, 1904. "DEAR SIR.- I did not know you were in the office while I was at the other end of the 'phone. I left your card below and was not quite sure of your number. "We had better let things simmer' for a few days as I expect to get hold of that Place. And clean house.' "I am going down there just as soon as I mail this, and have an understanding with Dr. Fraim who is my uncle. He and 'Firth' must go, then I will take hold.' "MR. BOGART: "Yours truly, "D. R. LONGENECKER.” "BROOKLYN, N. Y., Oct. 18, 1904. “DEAR SIR.—I cannot make any satisfactory arrangements with Dr. Fraim so have withdrawn. I still think something will happen so I can take hold, but at present I am out. I am going to Saranac Lake to see my son who is ill. "Now if I were you I would do nothing hasty, as I am satisfied they will pay their rent and that is all you want. I have no grievance. "Yours truly, On October 22, 1904, he wrote the defendant Fraim from Saranac Lake in substance informing said Fraim that he considered himself out of the business and advising Fraim to complete his plans with Firth, referring to some negotiations which he thought Firth and Fraim were conducting clandestinely. On the twentysixth of October the defendant Fraim executed a bill of sale of said business and the furniture and property used in connection therewith to the defendant Firth, and the latter took possession and, when the plaintiff returned, denied him admittance. The defendant Kuhn drew said bill of sale. The jury found a verdict against all of the defendants for $900 on the ground of conspiracy. We are unable to find any evidence whatever in the record to connect the defendant Kuhn with the alleged conspiracy. The misunderstanding between him and the plaintiff as to whether the |