35 Misc. 43 | N.Y. App. Term. | 1901
This is an action to recover for the conversion of sixty-four mantels of the value of $223. The learned justice held, in dismissing the complaint: “ The complaint is dismissed for insufficiency of proof, and for the reason that the testimony of plaintiffs is so varying and contradictory that the court is unwilling to issue a body execution upon it. Eurthermore Margolies nor plaintiffs was the owner and there was no proof of demand to return the property.” As there was no contradiction of the evidence of plaintiffs and their witnesses, and said witnesses were not impeached, it ivas error to deny its conclusiveness. Hull v. Littauer, 162 N. Y. 569.
The defendant, having exercised an act of ownership, by causing the mantels to be affixed to the building, no demand for their return was necessary, the sole object of a demand being to turn an otherwise lawful possession into an unlawful one by reason of a refusal to comply with it, and thus to supply evidence of a conversion. After a wrongful taking and carrying away of the property, the cause of action has become complete without further act on the plaintiffs’ part. Pease v. Smith, 61 N. Y. 477. In the case at bar, defendant never came into lawful possession of the property. ' It was taken to the building to deliver to the builder Margolies on payment. ' Plaintiffs waited two days to make that delivery and collection. On Sunday defendant ordered the articles set in the building, and paid for that work done on that day—the conversion was completed and no demand was necessary.
Judgment reversed and new trial ordered, costs to abide event.
Bischoff, P. J., and Leventritt, J., concur.
Judgment reversed and new trial ordered, costs to abide event.
