Dutch v. Parker — 97 N.Y.S. 966

Majority

p. 966

DUTCH v. PARKER.

(Supreme Court, Appellate Term.

March 2, 1906.)

Headnote

Replevin—Title—Evidence.

Where In replevin it was conceded that plaintiff was indebted to defendant in the sum of $120.47, which balance was arrived at by giving plaintiff credit for the articles replevied, and plaintiff produced no proof as to how the balance he admitted he owed was made up, a verdict finding title to the article so replevied to be in plaintiff was erroneous.

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by J. Fleming Dutch against Orsel A. Parker. From a Municipal Court judgment in favor of plaintiff, defendant appeals.

Reversed.

Argued before SCOTT, P. J., and GIEGERICH and GREEN-BAUM, JJ.

Henry S. Goodspeed, for appellant.

Marcus Helfand, for respondent.

Both parties concede that plaintiff is indebted to defendant in the sum of $120.47 as a result of certain debit and credit transactions between them. The accounts produced by defendant show that the said balance of $120.47 is made up by giving credit to plaintiff for the articles replevied. It is obvious if this account be correct that the title to the articles is in defendant. But the plaintiff produces no proof whatever as to how the balance, which he admits he owes defendant, is made up. Under such circumstances, it is clear that not only is a finding of title in the plaintiff against the weight of evidence, but almost conclusive proof is established that defendant, and not the plaintiff, is the owner of the chattels replevied.

The judgment should be reversed, and a new trial ordered, with costs and disbursements to appellant to abide the event. All concur.