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Braun v. Eckstein

128 N.Y.S. 1077 Court N.Y. App. Term Decision date 1911-05-04 English

Delivered by LEHMAN, J.

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p. 1077
BRAUN v. ECKSTEIN et al.
(Supreme Court, Appellate Term.
May 4, 1911.)

Headnote

1. Innkeepers (§ 13[1] )—Liens—Right to.
Boarding house keepers have a valid lien on a boarder’s trunk, unless the amount due for board is tendered.
[Ed. Note.—For other cases, see Innkeepers, Cent. Dig. §§ 42-46; Dec. Dig. § 13.[1] ]
2. Troves and Conversion (§ 69[1] )—Judgment—Property.
In an action for converting a boarder’s trunk, held for board due, where plaintiff relied on a tender of the amount due, it was error to order a release of the trunk, and to give judgment in the boarding house keeper’s favor.
[Ed. Note.—For other cases, see Trover and Conversion, .Dec. Dig. § 69.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Mollie Braun against Louis Eckstein and others, partners as Eckstein Bros. Judgment for defendants, and plaintiff appeals.
Reversed, and new trial granted.
Argued before SEABURY, LEHMAN, and GERARD, JJ.
Fannie Horovitz, for appellant.
Wentworth, Lowenstein & Stern, for respondents.

[1] The plaintiff sues for the conversion of a trunk. The answer sets up that the defendants are boarding house keepers, and have a lien on the trunk for $20 for board furnished to the plaintiff. The plaintiff claims that she tendered the amount of the charges for the board actually furnished. If she tendered this amount, the defendants are liable for conversion; if she did' not tender it, the defendants had a valid lien up to the amount due them for board furnished. Waters & Co. v. Gerard, 189 N. Y. 302 , 82 N. E. 143 , 24 L. R. A. (N. S.) 958 , 121 Am. St. Rep. 886 .

[2] The learned trial justice ordered the defendants to give up the trunk, and then gave judgment in their favor. The record does not disclose whether the trial justice believed the defendants, and ordered the release of the lien as a charity for the plaintiff, or whether he believed the plaintiff, but thought a judgment for the value of the goods furnished would be a hardship on the defendants. In either view, his order was unauthorized in an action of conversion. The

p. 1078
plaintiff is entitled to a trial of the issues raised by the pleadings, and judgment determining whether their action in retaining the trunk amounted to a conversion.

Judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

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