Smith v. Hart

34 Misc. 214 | City of New York Municipal Court | 1901

Fitzsimons, Ch. J.

It was error to dismiss the complaint. The evidence of the plaintiff, uncontradicted as it was, would have entitled and justified the court in directing a verdict in his favor. It proves that the defendant was the owner of a lot of ground at One Hundred and Thirtieth street and Park avenue, in the city of Hew York, and leased it to the plaintiff (who was a junk dealer) for the storage of old junk of all kinds. The plaintiff took possession about May, 1896, and about September, 1897, as he terms it, closed the yard and placed on the gate his own lock, leaving in the yard a quantity of junk of considerable value. With the plaintiff’s consent, on or about October 15, 1897, it appears that the defendant caused his agent to remove the plaintiff’s lock from the gate and placed thereon a lock owned by the defendant, thus securing the goods stored in the yard. This state of affairs continued down to September 20, 1898, when the plaintiff demanded his goods from the defendant, who, through his agent, one Beaver, refused to deliver the goods to the plaintiff unless one year’s rent was paid, and also some other charges. This demand was not complied with. The plaintiff’s was the only evidence submitted. It appears to us that the plaintiff had lawfully goods in the defendant’s yard; that, by the defendant’s consent, the same were left in said yard after the plaintiff had left it, and that he had a right to their possession at any time thereafter, if in the defendant’s possession; apparently it (the yard) was in his possession when a demand for them was made upon him, for his agent said to the plaintiff, “ You may have them if you pay us the rent due from you.” The defendant had no right to retain the goods for unpaid rent, and the detention of the goods, because of the plaintiff’s failure to pay said rent, was an unlawful act, and made the defendant guilty of conversion.

Wherefore, we say that it was error to dismiss the complaint. The judgment must be reversed, with costs to the appellant to abide the event.

Conlan and O’Dwyeb, JJ., concur.

Judgment reversed, with costs to appellant to abide event.