Anker v. Smith

87 N.Y.S. 479

Opinion

SCOTT, J.

The defendant does not appeal' from the order denying his motion to vacate the order of arrest, and it is therefore unnecessary to consider whether the affidavit upon which the order was founded was sufficient. The plaintiff delivered his goods to defendant for sale. The title did not pass, and the plaintiff had a right to retake possession of the goods whenever he saw fit. Of course, as to any goods which the defendant actually sold, the plaintiff could not sue as for a conversion, and it would have been a complete answer to this action if the defendant had shown that he had sold them. This he did not' undertake to do, and the presumption is that he did not sell them, but moved them out of his store and concealed them with a view to appropriating them to his own use. This he had no right to do, and his refusal to redeliver the unsold goods to plaintiff on demand amounted to a conversion of them. As the goods had disappeared, the proof of value offered by plaintiff was the best that, under the circumstances, could be furnished, and was sufficient. The plaintiff certainly made out a prima facie case. The defendant was sworn, but did not testify. All the presumptions must therefore be taken most strongly against him.

Judgment affirmed, with costs. All concur.