Erlanger v. Sprung

113 N.Y.S. 16

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 24, 1908
• Status: Published

Opinion

PER CURIAM.

The plaintiff sued the defendant and obtained a judgment against him for the alleged conversion of a black pearl which the defendant purchased of one Rang, who had obtained the same from the plaintiff. To maintain conversion, the plaintiff must prove ownership, or the right to the possession of the article claimed to have been converted. Concededly in this case the plaintiff delivered the pearl to Rang, and gave him authority to sell the same, thus investing him with the appearance of absolute ownership. The record is barren of any testimony tending, to show that the plaintiff did not part with the title to the pearl when he delivered it to Rang. The plaintiff himself gives no testimony upon that question. It is true, he saySj that, when he demanded the return of the pearl of the defendant, he told the defendant that “it was my property,” but that statement does not prove title or ownership in the plaintiff; it being merely the assertion of a claim. Rang says that, when he got the pearl from the plaintiff, the plaintiff gave him a bill or memorandum slip. That bill or memorandum was not produced, nor its contents given, and whether it was a bill of sale of the pearl, or what it was does not appear, and Rang also testified that, when he offered the pearl for sale, he made a price “in excess of what I was to pay Erlanger for them.” This testimony would seem to indicate a purchase by him of the pearl in question. The plaintiff having failed to prove either ownership or right of possession in himself to the property claimed to have been converted, there must be a new trial.

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