Cohen v. Salet — 49 N.Y. St. Rep. 144

Majority

p. 144

Isaac Cohen, App’lt, v. Moses Salet, Resp’t.

(New York Common Pleas, General Term,

Filed December 5, 1892.)

Headnote

Conversion—Damages.

In an action for conversion of the proceeds of goods consigned to defendant for sale, the defendant claimed that the goods were consigned to him by one B., to whom he had remitted the proceeds, less expenses, and a claim he held against B. Held, that the fact of plaintiff’s ownership having been determined, it was error to credit defendant with the amount of the claim against B., on account of the proceeds.

Appeal by plaintiff from a judgment in his favor, rendered in the district court in the city of New York for the second judicial district.

Action for conversion of the proceeds of a quantity of clothing alleged to have been consigned to defendant for sale.

A. Morris, for app’lt; A. & L. Levy, for resp’t

An examination of the proceedings on the trial reveals the justice of plaintiff’s contention that the amount awarded him in the trial court is inadequate.

Plaintiff sued as the assignee of one Joseph Cohen, to recover the value of three hundred pieces of clothing alleged to have been consigned by the assignor to the defendant for the purposes of

p. 145

sale, and to have been worth sixty-five cents each. Defendant admitted the receipt of three hundred pieces of clothing, of which he alleged two hundred and four were worth forty-five cents each, and the remainder worthless; but be denied that the clothing was the property of plaintiff’s assignor, or consigned to him by the latter; and farther alleged that it was consigned to him for sale by one Benjamin Cohen, the owner, for whose account, it was sold, and the proceeds, after deducting therefrom the commissions and expenses attending the sale, as well as a demand existing in favor of the defendant against Benjamin Cohen, remitted to the latter.

It is apparent that the trial justice credited plaintiff’s claim of ownership, and that being so, it was error to credit the defendant with the amount of his claim against Benjamin Cohen, on account of the proceeds of the sale of the,clothing, which is evident from the fact that the amount awarded plaintiff is but $20.19.

The judgment should be reversed, and a new trial ordered, with costs to abide the event

Pryor, J., concurs.