Janson v. Potruch

115 N.Y.S. 111 | N.Y. App. Term. | 1909

MacLean, J.

Upon oral pleadings the plaintiffs declared “ conversion,” and the defendants answered, “ general denial, bill of particulars.” According to the particulars furnished, the office of which “ is to amplify a pleading and to inform a party with reasonable certainty of the nature of the claim made by his adversary in order to prevent surprise and to enable him intelligently to meet the issue upon the trial ” (Taylor v. Security Mutual Life Ins. Co., 73 App. Div. 319, 823), the plaintiffs claim that the defendants converted the sum of $500, belonging to the plaintiffs, to their own use, as follows: “ That on or about the fifth day of June, 1908, the plaintiffs deposited with the defendants the sum of Five hundred dollars, together with two promissory notes aggregating the sum of Five hundred dollars additional, to be held as security under a lease dated June 5, 1908, of certain premises in the Borough of Brooklyn, City of New York, to be used as a theater for moving pictures or for vaudeville shows, which said lease was to be made by the defendants as lessors to the plaintiffs as lessees. That by a written instrument, delivéred at the same time with the said lease, the defendants agreed to procure a license for the use of said premises for a vaudeville house and moving picture place, and that the said lease should become null and void and the above security deposited with the defendants should be returned to the plaintiffs if the said license was not secured by the defendants. That no license was obtained by the defendants, and that the aforesaid lease was null and void, and that the plaintiffs demanded of the defendants the return of the security deposited with them, to wit, the sum of Five hundred dollars and the two promissory notes, and that no part thereof was returned, excepting the two promissory notes, although demand was duly made upon the defendants; whereby the plaintiffs were damaged in the sum of Five hundred dollars.” As they particularized, so they proved, with the exception of the moneys for the conversion of which this action was brought, and judgment was rendered in their favor, with provision for a body execution against the defendants. Thereafter, upon motion by the defendants, the trial justice by order modified and amended the judgment by striking therefrom the provision “ that the defendants are liable to arrest and imprisonment,” and from that order the plaintiffs now appeal. The trial justice was empowered to amend and modify the judgment by the provisions of section 254 of the Municipal Court Act; and, in view of the claim, despite its characterization, proven by the plaintiffs, the trial justice, under Cohn v. Beckhardt, 18 N. Y. Supp. 84, was justified in rendering judgment merely upon the legal obligation of the defendants to pay a sum certain to the plaintiffs as money had and received, because the plaintiffs deposited checks for $400 and for $100 with the defendants, and they appear to have been cashed in due course; wherefore the plaintiffs may not claim for conversion, unless the defendants were obligated to return the specific moneys deposited, and this was not shown. The order must, therefore, be affirmed.

Gildersleeve, J., concurs.

Dayton, J., concurs in result.

Order affirmed, with costs.