| N.Y. App. Div. | Jan 15, 1905
The practice in this case was irregular. . There should have been a decision directing the interlocutory judgment,'but instead there is ■merely an order.- The order, even if it 'could- be treated as a decision, is not appealable. The appeal should be from, the interlocutory judgment only.
The plaintiff’s assignor transferred real estate and other ..property • to the defendant as security for loans. It is alleged in the complaint that the defendant subsequently asserted absolute title tó the pléd'géd property aiid judgment is demanded for the value of the property over and above the amount of the loans on the theory that the assertion of title was a conversion and that it gave the owner an election to treat the transfers as. sales. The demurrer was upon the ground that the complaint failed to state facts sufficient to constitute a cause of action. There is no allegation that the pledgee disposed of any of the property, nor is there any allegation of a tender - of the, amount of the loans and interest and' demand for the return of the property. The pledgee was entitled to the possession of the'property until the same was redeemed, and the, mere assertion of title was not sufficient to constitute a conversion even as to the personal, property and of course there could be no conversion as to the realty.
It follows that the appeal from the order should be dismissed, with ten dollars costs, and the interlocutory judgment should be reversed, with costs, and tlie demurrer sustained? with costs, but with leave to plaintiff to amend upon payment of the costs of the appeal and of the demurrer.
Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.
Appeal from order dismissed, with ten dollars costs. Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below.