Roberts v. Berdell — 52 N.Y. 644

Majority

p. 644

Sidney D. Roberts, Respondent, v. Robert H. Berdell, Appellant. The Same, Respondent, v. The Same, Appellant.

(Argued February 19, 1873;

decided February 25, 1873.)

Headnote

A demand and refusal is evidence of a conversion at the time of the refusal, and the statute of .limitations against an action therefor then begins to run.

The first of the above appeals was from an order refusing, a new trial on the ground of fraud and newly discovered evidence. Held, that the order was not appealable on authority of Tracey v. Altmyer ( 46 N. Y., 598 ) .and Donley v. Graham. ( 48 N. Y., 658 ). ‘

The second was an appeal from the judgment in the same action.- The action was for conversion oí four bonds. The defence, a general denial and the statute of limitations.

The evidence showed that plaintiff’s assignor asked defendant for the bonds several times and was put off by evasive-answers. He made a formal demand in-June,-1861, when defendant for the first time absolutely refused. The action was commenced within six years from that time. Held, that no conversion was shown until such refusal; that the cause of action then arose, and that therefore the statute of limitations had not run. The other questions were disposed of on the facts in the case.

p. 645

Samuel J. Glassey for the appellant.

Thos. Henry Edsall for the respondent.

reads for dismissal of appeal from order, and for affirmance of judgment.

All concur.

Ordered accordingly.