Majority
p. 555Joseph Fleischman et al., Respondents, v. Max Glaser, Appellant. (Supreme Court, Appellate Term, July, 1899.)
Headnote
Replevin — Demand where detention is not unlawful.In order to maintain an action for detaining chattels wrongfully,, the plaintiff must prove a demand and a refusal to deliver, as against one not shown to have obtained possession wrongfully.
Appeal by defendant from a judgment of the Municipal Court of the city of Hew York, fourth district, borough of Manhattan, rendered in favor of the plaintiffs.
Bullowa & Bullowa, for appellant.
Louis Levy, for respondents.
This was an action brought to recover property wrongfully detained. As the record fails to show wrongful possession by the defendant, demand and refusal were necessary to constitute wrongful detention. Goodwin v. Wertheimer, 99 N. Y. 149 ; Porges v. Cohen, 23 Misc. Rep. 703 . The plaintiff testifies that, he never demanded the return of the property, and the bookkeeper of plaintiffs’ vendor, testifying to ail inquiry which, if it had been made by or for the plaintiffs, might be called a quasi
p. 556
demand, admits that the plaintiffs never requested him to act either on their behalf or by their authority.
. For this reason, the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Freedman, P. J., and Leventritt, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.
Cases cited
- Goodwin v. Wertheimer 99 N. Y. 149 p. 555
- Porges v. Cohen 23 Misc. Rep. 703 p. 555