Whitmark v. Lorton — 15 Daly (N.Y.) 548

Majority

p. 548

Mary Whitmark, Respondent, against William B. Lorton, Appellant.

(Decided February 3d, 1890.)

Headnote

Where, on appeal from a judgment of a district court, there is nothing in the record or papers to show that the action was not originaliy one for conversion, it will be presumed that an amendment allowing the action to proceed as an action for conversion was prudential merely and wholly unnecessary, and not that the action was changed from one on contract.

In an action for conversion, proof of what plaintiff had paid for the article alleged to have been converted is no proof of its value, upon which plaintiff can recover more than nominal damages.

Appeal from a judgment of the District Court in the City of New York for the Fourth Judicial District.

The facts are stated in the opinion.

J. Fennell, for appellant.

M. Strassman, for respondent.

There is nothing in the justice s return to indicate that this action was not originally brought to recover damages for conversion, and while, as an abstract proposition of law, the appellant’s contention that the justice had no power, by way of amendment of the complaint, to allow the sub

p. 549

stittition of an action sounding in tort for an action upon contract, must be conceded to be correct (Barnes v. Quigley, 59 N. Y. 268 ; Bockes v. Lansing, 74 N. Y. 442 ), the action of the appellate court reversing the proceedings of the trial justice must be predicated upon clear and convincing proof that the justice erred in the exercise of his powers. The summons issued out of a district court is uniform for all actions of which such courts have jurisdiction, and it was therefore not apparent from the summons issued herein that this action was not for conversion. The certificate of the justice to the return distinctly states that the action was for damages for conversion, and the proceedings upon the trial sustain the justice. The pleadings were oral, and this court is therefore not enabled to say that the amendment allowing the action to proceed as an action for the conversion of personal property was not prudential merely, though wholly unnecessary, and, for want of proof to the contrary, it must be so regarded.

The trial justice erred, however, in awarding more than nominal damages to the plaintiff. There is no proof of the value of the sewing machine for the conversion of which this action was brought, and in the absence of proof of value nominal damages only are recoverable (Connoss v. Meir, 2 E. D. Smith 314).

It is true that plaintiff testified that she had paid $49,00 to one Tuekermann on account of the purchase price of the machine, but proof of what plaintiff has paid or agreed to pay for the thing alleged to have been wrongfully converted is no proof of its value.

Judgment should be reversed and a new trial ordered, costs to abide event.

Bookstaver, J., concurred.

Judgment reversed and new trial ordered, with costs to abide event.

Cases cited

Connoss v. Meir 2 E. D. Smith 314 N.Y.C.P. p. 549