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Cohen v. Salet

21 N.Y.S. 585 Court N.Y.C.P. Decision date 1892-12-05 English

Delivered by BISCHOFF, J.

Contents

Majority

p. 585
COHEN v. SALET.
(Common Pleas of New York City and County, General Term.
December 5, 1892.)

Headnote

Teovbr and Conversión—Findings. Where the trial court found that plaintiff, in an action to recover the proceeds of goods consigned to defendant for sale, was the owner of the goods, it was error, on rendering judgment for plaintiff, to credit defendant with the amount of the proceeds of the goods which he had remitted to a third person, • by whom he claimed the goods had been consigned to him.
Appeal from second district court.
Action by Isaac Cohen against Mones Salet for the conversion of the proceeds of a quantity of clothing consigned to defendant for sale. Judgment for plaintiff, but, because of the inadequacy of the amount, heapVlpolQ Rp\TpVC!P/l
Argued before BISCHOFF and PRYOR, JJ.
A. Morris, for appellant.
A. & L. Levy, for respondent.

An examination of the proceedings on the trial reveals the justice of plaintiff’s contention that the amount awarded him in the trial court is inadequate. Plaintiff sued as the assignee of one Joseph Cohen to recover the value of 300 pieces of clothing alleged to have been consigned by the assignor to the defendant for the purposes of sale, and to have been worth 65 cents each. Defendant admitted the receipt of 300 pieces of clothing, of which he alleged 204 were worth 45 cents each, and the remainder worthless; but he denied that the clothing was the property of plaintiff’s assignor, or consigned to him by the latter, and further alleged that it was consigned to him for sale by one Benjamin Cohen, the owner, for whose account it was sold, and the proceeds, after deducting therefrom the commissions and expenses attending the sale, as well as a demand existing in favor of the defendant against Benjamin Cohen, remitted to the latter. It is apparent that the trial justice credited plaintiff’s claim of ownership, and, that being so, it was error to credit the defendant with the amount of his claim against Benjamin Cohen, on account of the proceeds of the sale of the clothing, which is evident from the fact that the amount awarded plaintiff is but $20.19. The judgment should be reversed, and a new trial ordered, with costs to abide the event.