Majority
p. 221(53 Misc. Rep. 643) THOMAS P. BEALE FURNITURE CO. v. McGRORTY. (Supreme Court, Appellate Term. March 14, 1907.) Argued before GIEDERSLEEVE, P. J., and DAVIS and HEN- ' DRICE, JJ.
Headnote
Trover and Conversion—Counterclaim.Where the court found for the plaintiff in an action for the conversion of furniture, it was error to sustain defendant’s counterclaim for storage of the furniture.
Appeal from Municipal Court, Borough of Manhattan, .Eleventh District.
Action by the Thomas P. Beale Furniture Company agáinst James J. McGrorty. Judgment for plaintiff, as reduced by defendant’s counterclaim, and plaintiff appeals. Reversed and remanded.
Porter & Barnes, for appellant.
William G. McGrorty, for respondent.
This action was brought to recover damages for the conversion of certain articles of furniture. The defendant denies the conversion. He admits that the furniture was delivered to him, but asserts that it was not the furniture ordered by him, and that he repeatedly notified the plaintiff to take it away from his place of
p. 222
business. Defendant’s contention on this point was fully sustained by the evidence. In fact, it was not denied by the plaintiffs. However, the court decided that there was a conversion, but sustained a counterclaim interposed by the defendant for storage of the furniture, and rendered judgment for $9 in favor of the plaintiff; $9 being the difference between the claim of the plaintiff and the storage charges claimed by the defendant. The plaintiff, objecting to the allowance of the storage charges, appeals from the judgment.
The judgment is necessarily based upon a finding of a conversion of the furniture by the defendant. This being so, the allowance of the counterclaim was improper. The conversion by defendant is inconsistent with a claim of storage charges, and such a counterclaim cannot be proved in an action of conversion.
The judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.