Fleischman v. Glaser — 59 N.Y.S. 686

Majority

p. 686

(28 Misc. Rep. 555.)

FLEISCHMAN et al. v. GLASER.

(Supreme Court, Appellate Term.

July 26, 1899.)

Headnote

1. Replevin—Wrongful Detention—Demand.

Where defendant’s possession is not wrongful, demand and refusal are necessary, that an action to recover property wrongfully detained may lie.

2. Agency.

Demand on defendant by the bookkeeper of plaintiffs’ vendor, he not having been requested by them to act on their behalf or by their authority, will not make defendant’s detention wrongful.

p. 687

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

Action by Joseph Fleischman and others against Max Glaser. From a judgment for plaintiffs, defendant appeals.

Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.

Bullowa & Bullowa, for appellant

Louis Levy, for respondents.

This was an action brought to recover property wrongfully detained. As the record fails to show wrongful possession by the defendant, demand and refusal were necessary, to constitute wrongful detention. Goodwin v. Wertheimer, 99 N. Y. 149 , 1 N. E. 404 ; Porges v. Cohen, 23 Misc. Rep. 708 , 52 N. Y. Supp. 71 . The plaintiff testifies that he never demanded the return of the property, and the bookkeeper of plaintiffs’ vendor, testifying to an inquiry, which, if it had been made by or for the plaintiffs, might be called a quasi demand, admits that the plaintiffs never requested him to act either on their behalf or by their authority. For this reason the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

Cases cited

Goodwin v. Wertheimer 99 N. Y. 149 N.Y. 1885-05-05 p. 687