BIJUR, J.
[1,2] Plaintiff’s complaint alleged: That he had delivered to defendant for repair a diamond pin, which defendant promised to redeliver after it was repaired. “That at various times thereafter plaintiff demanded of said defendant that he deliver said diamond pin to said defendant, but said defendant refused and still refuses so to-do, and has converted the same to his own use.” The summons bears the inscription that the plaintiff is liable to arrest and imprisonment. The action is plainly one in conversion. Viewed as an action in bailment, it-lacks the essential element of an allegation that defendant
*861failed to take due care of the bailment. Claflin v. Meyer, 75 N. Y. 260, 263, 264, 31 Am. Rep. 428.
The learned judge below, over defendant’s objection, submitted the case to the jury on both theories, and permitted the jury to determine, if it found for the plaintiff, whether it was upon the theory of bailment or conversion.
[3] Defendant’s motion to dismiss the complaint on the ground “that it is uncontradicted that plaintiff * * * did not have the pin in his possession at the time that it was demanded” was denied, although apparently there was no evidence from which the jury could infer otherwise. If, under the circumstances here disclosed, defendant did not have possession of the pin when the demand for its return was made, he could not be held in conversion. Salt Springs Nat. Bank v. Wheeler, 48 N. Y. 492, 8 Am. Rep: 564; Sternberg v. Schein, 63 App. Div. 417, 71 N. Y. Supp. 511.
Judgment reversed, and new trial granted, with $30 costs to appellant to abide the event. All concur.