Baruch v. Platt

114 N.Y.S. 26

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 8, 1909
• Status: Published

Opinion

PER CURIAM.

The plaintiff sent by the defendant’s express company goods consigned to a party in Scranton, Pa. Defendant promptly offered the goods to the consignee, who refused to accept them. Defendant’s clerk immediately wrote a postal card to plaintiff, informing him of such refusal. Plaintiff claims he never got the postal card. A representative of plaintiff called at defendant’s office in Scranton and asked about the goods, and the clerk of defendant told him of the refusal of the consignee, and that defendant had notified plaintiff and was awaiting his directions with regard to the goods. Plaintiff admits he sent statements, letters, and bills to the consignee, but claims he got no reply until long afterwards. Although plaintiff sues for the “wrongful detention” of the goods, he failed to prove demand and refusal. Whether the action is deemed to be based on negligence or on conversion, the evidence does not support the judgment, as defendant has shown itself free from negligence, and no demand and refusal has been shown, as is necessary in an action in conversion.

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