Hollenbeck v. Greene — 120 A.D. 671

Majority

p. 671

Feed W. Hollenbeck, Appellant, v. Albert C. Greene, Respondent.

Third Department,

June 25, 1907.

Headnote

Conversion — damage — failure of proof.

A judgment for the value of property converted cannot he sustained when there is no allegation or proof of the value of the property, or of any damage to the ■ plaintiff hy reason of its detention.

Appeal by the plaintiff, Fred W. Hollenbeck, from a judgment of the County Court of Cortland county, entered in the office of the clerk of the county' of Cortland' on the 24th day of December, 1906, reversing a judgment of a justice of the peace in favor of the plaintiff.

Arthur Fowlston, for the appellant.

William J. Mantanye, for the respondent..

The judgment was properly reversed by the County Court. The complaint was in wilting and alleged, in substance, that the plaintiff left a pair of bob-sleds at the residence of liis son, which was ón a farm owned by the defendant; that the defendant took possession of said bob-sleds, claiming that they belonged to the plaintiff’s son, and has since refused to surrender them to the plaintiff although he ' has demanded the same. The relief demanded was that the defendant surrender the bób-sleds together with the damages for withholding the same, or their value in money. On the trial in the Justice’s Court the plaintiff had a judgment for eleven dollars damages, besides costs.

The defendant claimed that he purchased the bobs at an execution sale under a judgment against the plaintiff’s son ; that the plaintiff was present at the sale, made no objection to its taking place and made no claim to the property. It is not necessary to determine whether this conduct on his part amounted to- a waiver of his claim of title to the property as the judgment for the plaintiff could not stand for the sufficient reason that it had no proof to sustain it.

p. 672

There was no allegation and no proof whatever of the value of the sleds nor of any damage suffered by the plaintiff because of the detention thereof. There was absolutely no foundation in the evidence upon which a" money judgment-could have been awarded, and there was no alternative left for the County Court except" to reverse it.

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.