Lucker v. Gross — 63 N.Y.S. 1074

Majority

p. 1074

LUCKER v. GROSS, Marshal.

(Supreme Court, Appellate Term.

April 16, 1900.)

Headnote

Trial — Conversion—Failure of Proof — Essential Facts — Motion to Dismiss.

In an action for the conversion of a saloon alleged to have been transferred by F. to plaintiff, where sufficient evidence was adduced by defendant to cast on plaintiff the burden of showing the bona fides of such transfer, and the proof failed to disclose when the sale was made, what consideration was given, when change of possession, if any, took place, and the circumstances surrounding- the transaction, it was error to deny a motion to dismiss the complaint, and give judgment for the plaintiff.

Appeal from municipal court, borough of Manhattan.

Action by Adolph Lucker against Max Gross, as one of the marshals of the city of New York. From a judgment in favor of plaintiff, defendant appeals.

Reversed.

Argued before BEEKMAN, P. J., and GIEGERICH and O’GORMAN, JJ.

Ignace I. Apfel (Abraham B. Schleimer, of counsel), for appellant'.

Hugo S. Mack, for respondent.

There was sufficient evidence adduced in the defendant’s behalf to cast upon the plaintiff the burden of showing the bona fides of the alleged transfer of the saloon by one Jacob Feller to him. The proof, however, fails to disclose when such sale was made; the consideration, if any, actually given therefor; when the change of possession, if any, took place; and the circumstances surrounding the transaction. There being thus a failure of proof of these essential facts, the justice clearly erred in denying the motion to dismiss the complaint made at the close of the case, and in giving judgment for the plaintiff.

The judgment must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.