McIntyre v. Smathers — 103 N.Y.S. 873

Majority

p. 873

(118 App. Div. 776)

McINTYRE v. SMATHERS.

(Supreme Court, Appellate Division, First Department.

April 12, 1907.)

Headnote

Counterclaim—Contract or Tort—Nature of Action.

A complaint alleging title to personal property in the plaintiff under a promise by defendant to deliver it upon demand, and a demand and refusal, sets out an action for conversion, so that a counterclaim may not be litigated in such action, under Code Civ. Proc. § 501, subd. 2, providing for counterclaim in actions on contracts. \

Appeal from Special Term, New York County.

Action for conversion by Thomas H. McIntyre against Elmer E. Smathers. Erom a judgment overruling a demurrer to a counterclaim, plaintiff appeals. Reversed.

Argued before PATTERSON, P. J., and McLAUGHLIN, HOUGHTON, SCOTT, and LAMBERT, JJ.

Maurice Leon, for appellant.

John M. Stearns, for respondent.

If the complaint sets out an action on contract, then the counterclaim may be litigated in this, action, under subdivision

p. 874

2 of section 501 of the Code of Civil Procedure. If, on the contrary, it is in tort, the judgment must be reversed.

The complaint alleges the title to the personal property in the plaintiff .under a promise by defendant to deliver it upon demand. Demand was made and refused. It is clearly a case where possession by the defendant until demand made was rightful, but the detention after demand is wrongful, and it amounted to a conversion at the election of the plaintiff. The title to the personal property in question is placed in the plaintiff by the allegations of the complaint, with the right of possession upon demand. It must be apparent that a refusal to surrender possession as an incident to the title constituted conversion.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend within 20 days after entry of order and payment of costs. All concur.