Kane v. Reid — 68 N.Y.S. 623

Majority

p. 623

KANE v. REID.

(City Court of New York, General Term.

January 21, 1901.)

Headnote

Replevin—Reasonable Demand—Jury Question.

Plaintiff, after delivering a deed to premises without anything being said as to the gas fixtures therein, brought replevin for the same. A demand was made for the fixtures at 5 o’clock on a Saturday afternoon late in October and, though the right to possession was not disputed, the taking of tnem was refused until Monday morning, as they were needed to light the house over Sunday. Held, that the question as to whether or not such a demand was reasonable and proper was for the jury, and it was error for the court to direct a verdict for plaintiff.

p. 624

Appeal from trial term.

Replevin by John P. Kane, as executor, against Jennie Reid. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Reversed.

Argued before MCCARTHY and O’DWYER, JJ.

Edmund T. Oldham, for appellant.

J. Woolsey 'Sheppard, for respondent.

The only demand available to plaintiff is the one of October 29, 1898. Plaintiff must rely on his final assertion of ownership, instanced by his final demand. This was on October 29, 1898. That he had not abandoned his title on October 22d is shown by his letter to Rogers on October 26th, and that he had not abandoned his title on October 26th is shown by his retention of title involved in his demand for possession on the 29th. The property consisted of gas chandeliers, brackets and appliances, and gas logs, affixed to the premises by the plaintiff, left there by the plaintiff, and a deed of the premises delivered to the defendant without one word being said to the defendant. Under the circumstances we agree with the learned counsel for the appellant that it was a question for the jury to determine whether the making of a demand for the return of these articles at 5 o’clock in the afternoon of Saturday, October 29th, was a demand at a proper time and in a proper manner. The defendant says that she told the plaintiff's representative, upon the demand being made, “that she could not be left in darkness Saturday and Sunday nights, but that he could have them on Monday morning”, and under this evidence it was the duty of the court to submit the question of the reasonableness of this demand to the jury, and the refusal to do so is error, requiring the reversal of the judgment. We are also agreed upon the appeal from the order denying the motion for a new trial that the question of value should have been submitted, and this error may be cured on such appeal.

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