Green v. Margolius — 140 N.Y.S. 139

Majority

p. 139

GREEN v. MARGOLIUS.

(Supreme Court, Appellate Term, First Department.

February 18, 1913.)

Headnote

1. Appeal and Error (§ 1152^[1] )—Modification of Judgment—Statute.

In an action for conversion, where the evidence shows that plaintiff has waived the tort, the Appellate Term under Code Civ. Proc. § 1317, relating to judgment or orders on appeal, is empowered to modify the judgment therein by striking out a provision holding defendant liable to arrest.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4483-4496; Dec. Dig. § 1152.*]

.2. Trover and Conversion (§ 22*)—What Constitutes Defenses.

Where the tort has been waived so that an action for conversion is merely an action upon contract, the defendant is entitled to a credit for the amount paid plaintiff on his waiver of the tort.

[Ed. Note.—For other cases, see Trover and Conversion, Cent. Dig. §§ 152-162, 167-169; Dec. Dig. § 22.*]

Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by William M. Green against Max Margolius.. From a judgment of the Municipal Court of the City of New York in favor of plaintiff, defendant appeals. Modified and affirmed.

p. 140

Argued January term, 1913, before SEABURY, LEHMAN, and PAGE, JJ.

Price Bros. (Harvey C. Price, of New York City, of counsel), for appellant.

McLear & McLear, of New York City, for respondent.

[1,2] This is an action to recover damages for conversion of two diamond earrings. The evidence shows that the earrings were converted by the defendant, but that the plaintiff waived the tort when he gave a receipt to. the defendant, which stated that the earrings had been sold by the plaintiff to the defendant and accepted $50 on account. The judgment appealed from contains a provision that the defendant is liable to arrest. This would be correct if the plaintiff had not waived the tort. We do not think it necessary to reverse the judgment, but under section 1317 of the Code of Civil Procedure we have power to provide that the judgment should be modified by striking out the provision “defendant liable to arrest.” As the tort was waived and the action is now regarded as upon contract, the defendant is entitled to credit for the $50 paid the plaintiff on account.

The judgment is modified by striking out the provision “defendant liable to arrest” and reducing the amount thereof to $210 and costs, with interest from July 22, 1911, and, as modified, affirmed, without costs to either party upon this appeal. All concur.