Majority
p. 123Commercial Credit Corporation, Appellant, v. Ednoris Silk Corporation, Respondent. First Department, December 1, 1939.
M. G. Golden of counsel [Dills, Muecke, Schelker & Levinson, attorneys], for the appellant.
Louis Levine, for the respondent.
Upon the present record the defendant failed to establish by a preponderance of the evidence that the plaintiff had exercised such dominion over the defendant’s property as to constitute a conversion. (Bishop v. Hendrick, 82 Hun, 323 ; affd. on
p. 124
opinion below, 146 N. Y. 398 ; Gillet v. Roberts, 57 id. 28; Andrews v. Shattuck, 32 Barb. 396 ; Connah v. Hale, 23 Wend. 462 .) However, in view of the fact that the testimony leaves many of the circumstances of the transaction in considerable obscurity, we think there should be a new trial on the defendant’s counterclaim at which there may be a fuller development of the facts.
The judgment on the defendant’s counterclaim against the plaintiff should be reversed and a new trial ordered thereon, with costs to the appellant to abide the event.
Present — Martin P. J., Townley, Untermyer, Cohn and Callahan, JJ.
Judgment on defendant’s counterclaim against the plaintiff unanimously reversed and a new trial ordered thereon, with costs to the appellant to abide the event. Settle order on notice.
Cases cited
- Andrews v. Shattuck 32 Barb. 396 p. 124
- Connah v. Hale 23 Wend. 462 p. 124