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Rosen v. Brodskey

57 N.Y.S. 99 Court N.Y. App. Term Decision date 1899-03-24 English

Delivered by FREEDMAN, P. J.

Contents

Majority

p. 99
ROSEN v. BRODSKEY.
(Supreme Court, Appellate Term.
March 24, 1899.)

Headnote

Pleading—Variance.
Under a complaint for conversion, no recovery can be had on a cause of action on contract.
Appeal from municipal court, borough of Manhattan, Fourth district.
Action by Moses Rosen against Max Brodskey. There was a judgment for defendant, and plaintiff appeals.
Affirmed.
Argued before FREEDMAN, P. J., and MacLEAN and EEVEN-TRITT, JJ.
Fleugelman & Bach, for appellant.
Friend, House & Grossman, for respondent.

The complaint in this action was for a conversion, and the answer a general denial. The case contains conflicting evidence, and seems to have been tried by both parties more in the nature of an accounting than otherwise; but the judgment for the defendant is clearly right, because no recovery upon a cause of action founded upon contract could be had under the pleadings, and the testimony wholly failed to establish conversion.

Judgment should be affirmed, with costs. All concur.