Acunto v. Weintraub — 141 N.Y.S. 514

Majority

p. 514

ACUNTO v. WEINTRAUB et al.

(Supreme Court, Appellate Term, First Department.

May 8, 1913.)

Headnote

Courts (§ 189*)—Municipal Courts—Dismissal.

Where, in an action for conversion of a piano, plaintiff failed to prove-demand and refusal, the court should only have dismissed without prejudice, as provided by Municipal Court Act (Laws 1902, c. 580) § 248, subd.. 4, and it was error to render judgment absolute for defendant, who conceded that.he had no title to the piano, and offered to return it, without' damages for detention or rent for its use.

[Bd. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.^[1] ]

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

Action by Stephen Acunto against Abraham Weintraub, impleaded with Joseph Weintraub. From a judgment in favor of defendant

p. 515

Abraham Weintraub, the action having been discontinued against Joseph Weintraub, plaintiff appeals. Modified and affirmed.

Argued April term, 1913, before GUY, GERARD, and PAGE, JJ.

Fiorello H. La Guardia, of New York City, for appellant.

Joseph W. Brainsby, of New York City, for respondent.

This action is for the conversion of a piano. At the close of the trial the trial justice dismissed the complaint, upon the ground that there was no proof of a demand or refusal, but directed that an absolute judgment should be entered in favor of the defendant and against the plaintiff. This was error. The most that the court below could do was to dismiss the complaint without prejudice to a new action. Section 248, subd. 4, Municipal Court Act (Laws 1902, c. 580).

The defendant substantially concedes, and the testimony in the record tends to show, that the defendant has no title to the piano, and that he has offered to return the same to the plaintiff, but without damages for its detention or rent for its use. We think that the interests of justice require that the judgment should be modified accordingly.

Judgment modified, by awarding the possession of the piano to the plaintiff, without damages, and without costs of this appeal to either party. All concur.