Ehrenreich v. Knudsen

157 N.Y.S. 1082

Opinion

PER CURIAM.

This action is brought to recover possession of five pictures, or for the sum of $500, with interest, in case possession thereof cannot be obtained. Plaintiff testified that he delivered eight pictures to defendant in the. city of London in December, 1913, with the understanding that the same were to be returned upon demand. Plaintiff claims that defendant did return three of the pictures in question, but that he has refused to deliver the remaining five. The court below directed judgment for the plaintiff for the sum of $500 and costs.

[1] Since this is an action for the possession of chattels, the judgment should have been for the recovery of the property, or for the value thereof in case delivery could not be had, together with damages for its detention.

[2] The form of the judgment could be corrected by this court; but it is unable to do so, in view of the fact that there are other errors in the record which require a reversal of the judgment.

[3, 4] The learned court below permitted plaintiff to state the value of the pictures at the time of their delivery to defendant. The proper consideration in such an action as this is the value of the chattels at the time of trial. Furthermore, plaintiff asserted the value of the eight pictures to have been $800. Three were returned, and the record' is silent as to their value. In fact, there is no testimony in the case upon which an appraisal of the value of the individual pictures could be made, and it is difficult to understand how the court below reached the decision it did.

Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event.