Zeitlin v. Arkaway — 54 N.Y.S. 139

Majority

p. 139

(25 Misc. Rep. 186.)

ZEITLIN v. ARKAWAY et al.

(Supreme Court, Appellate Term.

November 10, 1898.)

Headnote

Conversion—Verdict—Determination of Issues.

In an action for conversion of property which defendant had manufactured for plaintiff, on which the former claimed that there was $76 due him, a verdict: “In favor of plaintiff, that he is entitled to the recovery of the possession of the property [of a certain value], and that defendants are entitled to be paid the sum of $76 upon the delivery of the goods,”—is void, as it fails to determine the issues.

Appeal from municipal court, borough of Manhattan, First district.

Action by Samuel Zeitlin against Hyman Arkaway and others. Judgment for plaintiff, and defendants appeal.

Reversed.

Argued before BEEKMAF, P. J., and GILDERSLEEVE and GIEGERICH, JJ.

p. 140

M. D. Steuer, for appellants.

L. Levy, for respondent.

This action was brought to recover damages which the plaintiff alleged he sustained by reason of the wrongful conversion by defendants of the plaintiff’s personal property. The pleadings were oral. The issues were tried by the court and a jury. It appeared from the testimony that the defendants had undertaken to make up for the plaintiff a quantity of collars and cuffs. When the work was done, the parties could not agree upon the sum to be paid for the labor. The plaintiff offered to pay $70 for the work, while the defendants insisted upon $76.30. There is some conflict of testimony as to just what transpired in reference to this feature of the controversy. The court charged the jury, among other things, as follows :

“Your verdict in this case will be one of two: It will be a judgment for the plaintiff in such sum as you believe these goods to be worth, or judgment for the defendants.”

The jury rendered the following verdict:

“In favor of the plaintiff, that he is entitled to the recovery of the possession of the property claimed in the action, being 15510/12 dozen collars, and 77n/i2 dozen cuffs, or their value. The jury find the value of the property to be $446.77, and that defendants are entitled to be paid the sum of $76.30 upon the delivery of the goods.”

This verdict did not determine the issues presented. An appropriate judgment could not be entered thereon. In an action for conversion, the judgment should be in favor of the plaintiff for the value-of the property, or a judgment in favor of the defendant.

The judgment should be reversed, and a new trial ordered, with, costs to the appellants to abide the event. All concur.