27 A.D. 316 | N.Y. App. Div. | 1898
If the complaint in this action can be properly construed as one for conversion, the motion for judgment should have been granted, and the order denying it must be reversed.
That pleading, in substance, avers that the defendants received from the plaintiff- bicycles under an agreement that the'title to and ownership of the same should remain in the plaintiff until they were
At the Special Term the court held that the complaint stated an action on contract only, upon which no application for judgment was necessary, and, therefore, denied the motion. The argument to sustain this conclusion was, that under the agreement the defendants had the right to sell the bicycles ; that if they had sold them their failure to surrender them on demand would not be a conversion, and that, therefore, the allegation that the defendants had converted the bicycles to their own use was not sustained by the facts elsewhere alleged. .
It is true that the defendants were authorized to sell the bicycles, and it is also true fhat they might have been held liable on a promise to pay the agreed price for the same. But, nevertheless, it is clear that the plaintiff’s attorneys intended that the complaint should be •one for a conversion merely. It distinctly avers that the bicycles were delivered into the possession of the defendants, and nothing is therein alleged from which it can be inferred that they had been sold by them. If as a matter of fact they had been sold, the defendants might have set it up as a defense to the claim that they had converted them. In that event the bicycles would not have been unlawfully detained. But upon the complaint itself no presumption arises that they were not still in the defendants’ possession. The terms under which defendants received that possession required
The order should be reversed, with ten dollars costs and disbursements, and the motion for judgment granted.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion for judgment granted, with ten dollars costs.