Davis v. Miller's Auction Rooms, Inc.

144 N.Y.S. 672 | N.Y. App. Term. | 1913

LEHMAN, J.

The plaintiff has recovered a judgment for $200 as damages for the conversion of certain furniture owned by her. According to her story, the furniture was delivered by her to one Levine, a furniture dealer, for the purpose of having it transported to a storage warehouse. Levine, instead of carrying out plaintiff’s instructions, placed it in his own store, where it was sold with other furniture apparently belonging to Levine, or part of his stock, to the defendants, who thereafter, and after notice of plaintiff’s claim of ownership, resold the furniture at auction.

[ 1 ] The defendants claimed that since the plaintiff gave possession of the furniture to a dealer, with apparent fight to sell, the dealer could give good title to an innocent purchaser.

I think that, if plaintiff’s story is true, the trial justice correctly held that there was a conversion of plaintiff’s property, for which the defendants are liable. The furniture was not delivered to the dealer to be placed in his place of business, but to be placed in a storage warehouse. If he had apparent authority to sell, it was not because he had been given such authority, but because he had wrongfully taken it by holding the property himself, when it was delivered to him only for the specific purpose of -storing it.

[2] It seems to me, however, that the judgment should be reversed because upon this record it would appear that the damages awarded are excessive and erroneous. The furniture consisted in part of articles purchased by the plaintiff from her mother, which were worth, according to her testimony, $75 or $80, and in part of furniture purchased by the plaintiff from Levine on the installment plan, for $120, on which she had paid $63. Aside from the fact that there is absolutely no evidence of the value of the furniture at the time of its conversion, except the cost price, it would appear that Levine had some claim on this furniture for the unpaid installments.

The' defendants seem to have obtained from Levine all his rights to the furniture, and should not be held liable to the plaintiff for more than the value of the articles, beyond the rights acquired from Levine.

Judgment should therefore be reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.