Braun v. Eckstein, 128 N.Y.S. 1077

Braun v. Eckstein

128 N.Y.S. 1077 | N.Y. App. Term. | 1911

LEHMAN, J.

[1] The plaintiff sues for the conversion of a trunk. The answer sets up that the defendants are boarding house keepers, and have a lien on the trunk for $20 for board furnished to the plaintiff. The plaintiff claims that she tendered the amount of the charges for the board actually furnished. If she tendered this amount, the defendants are liable for conversion; if she did' not tender it, the defendants had a valid lien up to the amount due them for board furnished. Waters & Co. v. Gerard, 189 N. Y. 302, 82 N. E. 143, 24 L. R. A. (N. S.) 958, 121 Am. St. Rep. 886.

[2] The learned trial justice ordered the defendants to give up the trunk, and then gave judgment in their favor. The record does not disclose whether the trial justice believed the defendants, and ordered the release of the lien as a charity for the plaintiff, or whether he believed the plaintiff, but thought a judgment for the value of the goods furnished would be a hardship on the defendants. In either view, his order was unauthorized in an action of conversion. The *1078plaintiff is entitled to a trial of the issues raised by the pleadings, and judgment determining whether their action in retaining the trunk amounted to a conversion.

Judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.