Berney v. Marks

34 Misc. 527, 69 N.Y.S. 993

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 15, 1901
• Status: Published

Opinion

Bischoff, P. J.

This action is for the conversion of a ring, which had been deposited by the plaintiff with a stakeholder, as security for a wager of $100, made by him with the defendant touching the assumed weight of a certain diamond owned by the latter. The terms of the wager included the weighing of the diamond in the presence of the parties, on notice, and the proof for the plaintiff was that he had received no notice whatever nor any opportunity of paying his bet, and that his defeat was brought home to him first through what he could infer when his ring came to view upon defendant’s hand.

The issue as to whether the plaintiff was given notice, according to the agreement, was presented upon conflicting testimony, but there is no ground for our disturbing the result upon the facts, and the finding that there was no notice supports the cause of action for conversion, since the defendant’s possession is thus disclosed, to have been obtained through a delivery by the stakeholder in disregard of the agreed limits of his authority, with the result that no title passed. Hodge v. Sexton, 1 Hun, 576.

We are not called upon to say whether the appellant is correct in his contention that property lost at play must be recovered, if at all, in an action for the return of the specific thing lost, for here there was a deviation from the agreement whereby the defendant was to get possession of the chattel, and an action for conversion lies, upon general principles, without resort to the statute applicable to gaming.

The judgment should be affirmed, with costs.

Leventbitt and. Clarke, JJ., concur.

Judgment affirmed, with costs.