150 N.Y.S. 969 | N.Y. App. Div. | 1914
A verdict having been directed, the plaintiff on this review is entitled to the most favorable view of the evidence. If the defendants came into possession of the property pursuant to the judgment in the foreclosure action they were rightfully in possession, and a demand was essential to make their detention wrongful and authorize an action for conversion. It is manifest that there could be no lawful demand until the defendants came into possession of the property. Having no title, or possession, or right to possession until payment of the purchase price and the receipt of the referee’s deed, they could not have surrendered possession of the property to. the plaintiff.. The verdict, therefore, must be permitted to stand upon this, if upon no other ground.
We are also of opinion that the plaintiff, by electing, pursuant to the provisions of the conditional bill of sale, to declare the entire balance due on default in paying the check for the first payment and by bringing action thereon alleging such election, and by subsequently filing the mechanic’s lien, made an irrevocable election to have title pass to the vendee and to
Ingraham, P. J., McLaughlin and Dowling, JJ., concurred; Hotchkiss, J., concurred on the ground that the filing of the mechanic’s lien was an election and that the demand was too late.
Judgment affirmed, with costs.