265 A.D. 864 | N.Y. App. Div. | 1942
We have considered the complaint as alleging a cause of action based on a breach of an agreement. We find that the evidence fails to establish a prima facie case that an agreement was made. The dismissal is, therefore, correct on all grounds. Hagarty, Carswell and Adel, JJ., concur; Lazansky, P. J., and Close, J., dissent and vote to reverse the judgment and order and to grant a new trial, with the following memorandum: The warrant of the Municipal Court awarded possession of the real property to the defendant. It did not and could not authorize defendant to seize plaintiff’s personal property; nor did it authorize defendant to retain possession thereof after plaintiff demanded its return. Whether the complaint be viewed as stating a cause of action in conversion or for breach of agreement, plaintiff, made out a prima facie case sufficient to put defendant to its proof. In the interests of justice a full trial of the issues should be had.