Jackson v. Fuller — 97 N.Y.S. 975

Majority

p. 975

JACKSON v. FULLER.

(Supreme Court, Appellate Term.

February 27, 1906.)

Headnote

Tboveb and Convebsion—Right of Action.

Where plaintiff and defendant had agreed that defendant was to- have possession of a wagon till a sum paid by him for plaintiff was repaid, defendant was not guilty of conversion of the wagon in refusing to deliver It before he was repaid.

p. 976

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

Action of conversion by Scipio Jackson against William H. Fuller. From a judgment in favor of “plaintiff for possession of the wagon, subject to the lien of $45 due the defendant by the plaintiff,” plaintiff appeals.

Reversed.

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

L. & I. J. Joseph, for appellant.

James J. MacEvilly, for respondent.

The justice in effect found, as we must assume from the judgment rendered, that the parties agreed that the defendant was to have the possession and use of the wagon until he was repaid the sum of $45, which he had advanced, at the request of plaintiff, to take up three promissory notes made by the latter to a third person, and that the plaintiff did not tender repayment of such sum, as claimed by him. Under these circumstances, the defendant, by virtue of such lien, was entitled to retain the possession of the wagon until the amount due was paid, and hence was not guilty of a conversion by refusing to deliver the same to the plaintiff. From this it is clear that there should have been judgment for the defendant, and we would so modify the judgment, without costs, if we have the power to do so in such a case as this. The plaintiff’s counsel upon the argument was given the opportunity of obtaining a return of the wagon in controversy upon payment of the amount of the loan, and thus to end the litigation; but he refused to accept such offer, and insisted upon a reversal of judgment.

Judgment reversed, and new trial ordered, but, under the circumstances, without costs.