Van Brunt v. Oestreicher — 60 N.Y.S. 505

Majority

p. 505

(29 Misc. Rep. 340.)

VAN BRUNT v. OESTREICHER

(Supreme Court, Appellate Term.

October 25, 1899.)

Headnote

Conversión—Evidence.

To sustain an action for conversion, it must appear that defendant exercises dominion over the property, to the exclusion of the owner’s rights therein.

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

Action by Adelaide Van Brunt against Jacob J. Oestreicher. From a judgment for plaintiff, defendant appeals.

Reversed.

Argued before FREEDMAE, P. J., and MacLEAE and LEVEETRITT, JJ.

Marcus Schnitzer, for appellant.

John Callahan, for respondent.

Under an oral plea of conversion, the plaintiff testified that she ordered a coat to be made for her by the defendant, a ladies’ tailor; that, when the garment was sent, she was about to leave the city, but, supposing that the garment would be as ordered, she paid the price agreed upon; that afterwards, discovering that the garment did not fit, she returned it, as she also did again after a failure by the defendant to make it as it should be; that then she demanded repayment of the money, which was refused. She never demanded the garment. This evidence was insufficient to sustain an action wherein the plaintiff is required to prove that the defendant exercises dominion over the property in exclusion or in defiance of the owner’s right. The judgment should be reversed, and a new trial ordered.

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