Pashinska v. Selt

20 Misc. 665 | City of New York Municipal Court | 1897

Van Wyck, Ch. J.

The appeal is not from the judgment, but from the order denying motion for new* trial, made on return of verdict for plaintiff. The action is for conversion by defendant of plaintiff’s trunk and its contents stored by her for hire, with defendant. The defendant’s receipt (Exhibit A) for the trunk, and the corroborating testimony, is overwhelming proof that he held the same on storage. The defendant contended by his proof, that plaintiff’s brother, who concededly had authority to act for her,' instructed him to deliver the trunk to an expressman who would call for it and present his (the brother’s) written order for such delivery; that a coal peddler called with his wagon, presented such written order and received and took away the trunk, first giving to defendant such order and his receipt for the trunk. The defendant produced what purported to be the coal peddler’s receipt for the trunk, and it was marked in evidence, but testified that the brother’s written order, which he received from the coal peddler upon delivery of the trunk, had been destroyed by fire, and had been kept by him in a different place than the one' where he had kept the coal peddler’s receipt. The plaintiff’s brother testified that he had never signed such a written order, or given any one oral or written instruction to receive the trunk from defendant, or instructed the defendant to deliver the trunk to any one. The defendant testified and the purported receipt showed that he had all the time known the number of the coal peddler’s wagon, refused to disclose it to the plaintiffs attorney when asked to show the receipt, before the action was commenced, and did not produce the coal peddlér at trial, or' show that he had made any effort to ascertain his whereabouts by means of the number of his wagon or otherwise. The proofs, as shown by the record, required .that this case should be submitted to the jury for their determination, and it would have been reversible error to have directed a verdict-for defendant, if requested, but which was not requested. The defendant does not appeal from the judgment, and concedes that no error was committed in the charge, or in admitting or excluding evidence. The verdict for plaintiff is not excessive or contrary to evidence or the law.; nor is it against the weight of evidence, and is a finding that defendant converted the trunk and its contents. If one man who is intrusted with the goods of another,.put them into the hands of a third person, contrary to order, it is a conversion. The order appealed from is affirmed, with costs.

McCabthy and Sohuohmak, JJ., concur.

Order affirmed, with costs.