24 N.Y.S. 115 | The Superior Court of the City of New York and Buffalo | 1893
The complaint having been dismissed at the trial upon plaintiff’s proof, and by reason of the failure of the plaintiff to establish that the defendant was in the actual possession of the chattels, for the conversion of which this action has been brought, the dismissal, if otherwise proper, should not have been upon the merits. A review of the whole case has satisfied me, however, that the complaint should not have been dismissed at all. Under the chattel mortgage, plaintiff’s title and right to immediate possession of the mirrors were complete. The mirrors were simple chattels, and the foreclosure sale of the real ^property to the defendant conveyed to him no right to or interest in the said mirrors. McKeage v. Insurance Co., 81 N. Y. 38. Moreover, the plaintiff gave public notice of his claim at the foreclosure sale. Now, it may be conceded that the defendant did not become liable for a conversion of the mirrors simply because he purchased the premises, and subsequently refused to deliver up the mirrors on plaintiff’s demand. Plaintiff was bound to prove, as part of his case, that, prior to the demand made, the mirrors, or so many of them as he sought to recover for; had come into the possession of the defendant, or that