104 N.Y.S. 915 | N.Y. App. Term. | 1907
Plaintiff was the owner of a mare which he delivered to'the defendant, an intending purchaser, for the purpose of a preliminary trial upon the agreement that, if the animal proved satisfactory, he (defendant) would pay the agreed price. It is conceded that within the period allowed for the trial the mare was accidentally killed. The action was tried upon written pleadings and the complaint sufficiently alleges causes of action in replevin and conversion and judgment was rendered by~the terms of which execution against the person might issue. It was conceded that plaintiff delivered the mare to the defendant so that no unlawful taking was established; and the undisputed evidence is that defendant was neither in possession of - the property at the time of the demand nor that he had voluntarily, fraudulently or intentionally parted with the same, and consequently he could not be chargeable with unlawful detention. Sinnott v. Feiock, 165 N. Y. 444. The accidental destruction of the property while lawfully in the possession of a defendant is not a conversion; it may constitute negligence. “ The
Gildersleeve and Goff, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.