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Liebowitz v. Brinn

113 N.Y.S. 685 Court N.Y. App. Term Decision date 1908-12-24 English

Delivered by HENDRICK, J.

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p. 685
LIEBOWITZ v. BRINN et al.
(Supreme Court, Appellate Term.
December 24, 1908.)

Headnote

Trover and Conversion (§ 17[1] )—Right to Possession—Conditions.
Where plaintiff’s right to possession of the goods sued for was conditional on the settlement of his debts, and no settlement was effected as to defendants and one other creditor, plaintiff could not recover for conversion of the goods.
[Ed. Note.—For other cases, see Trover and Conversion, Cent. Dig. § 122; Dec. Dig. § 17.*]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by William Liebowitz against Simon Brinn and others. From a Municipal Court judgment for plaintiff, defendants appeal.
Reversed and new trial ordered.
Argued before GIEGERICH, HENDRICK, and FORD, JJ.
Marcuson Bros., for appellants.
Abr. A. Joseph, for respondent.

Under the view most favorable to the plaintiff, the bailment was a conditional one, conditional on the plaintiff’s settlement with his creditors. His right to possession could begin only with his fulfillment of the condition precedent, the settlement of his debts. The evidence shows that no such settlement was carried out, at least as to the defendants and one other creditor, and the plaintiff could not recover in conversion. The complaint should have been dismissed.

Judgment reversed and new trial ordered, with costs to appellants to abide the event. All concur.