Schwartz v. Marks — 101 N.Y.S. 792

Majority

p. 792

SCHWARTZ v. MARKS et al.

(Supreme Court, Appellate Term.

December 11, 1906.)

Headnote

Tboveb and Conversion—Judgment—Money Judgment—Return op Possession.

In an action for damages for conversion of goods, where the conversion and damages are proved, the judgment should be a money judgment simply for the damages sustained and proper costs, without providing in the alternative for a return of the possession.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 47, Trover and Conversion, § 309.]

Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by Charles S. Schwartz against Morris Marks and another. From a judgment in favor of plaintiff, he appeals. Reversed and rendered.

Argued before GILDERSLEEVE, FITZGERALD, and DAVIS, JJ.

Clocke & Clocke, for appellant.

S. N. Freedman, for respondents.

Appeal by the plaintiff from a judgment rendered in his favor against the defendants. The action was brought for the recovery of $124.96 as damages for the conversion of 104 window sashes. The court rendered judgment in the following terms:

“Plaintiff to ha’ve possession of the property, or defendants to pay plaintiff $124.96 damages, $3 costs, $2.72 prospective costs, and $15 extra costs, making a total of $145.68.”

The conversion of the property and the damages were proved, and the plaintiff was entitled to a money judgment simply for $124.96 and the proper costs.

The judgment is reversed, and judgment is directed for plaintiff for the sum of $124.96, together with $3 costs and $2.72 prospective costs, and the costs of this appeal.