136 Misc. 837 | City of New York Municipal Court | 1930
Action for conversion of two printing presses. Plaintiff proved right to possession, demand and refusal, and the market value of the presses. In cross-examination it developed that the presses were returned to plaintiff by defendant under a stipulation that the return was to be “ without prejudice ” to plaintiff's cause of action for conversion. The presses had the same value when returned as when converted. Plaintiff is a dealer in second-hand presses, and did not use them for any other purpose than buying and selling. Upon these facts a verdict was directed for plaintiff for nominal damages. Plaintiff now seeks to set aside that verdict upon these grounds: That the return of the converted chattels after suit was brought is ineffectual as a defense and does not alter the case; that, even if this is not so, the return should have been pleaded in mitigation of damages; that plaintiff was entitled to interest on the value of the presses while they were converted.
The first ground is ordinarily true. But the stipulation of counsel puts a different complexion on the transaction. Did the parties mean that the chattels were to be had by the plaintiff and that nevertheless the defendant was to be responsible for their
Motion denied.