Fishman v. Platt

90 N.Y.S. 354

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 10, 1904
• Status: Published

Opinion

PER CURIAM.

This action was brought to recover the sum of $120 “for the conversion of personal property.” The testimony given upon the trial utterly fails to show a conversion. Plaintiffs gave the defendant a package of suits, 12 in number, to carry to Paterson, N. J.. addressed to J. Fabian. At the time the goods were shipped the plaintiffs handed the defendant’s driver an express receipt, filled out by plaintiffs. The driver signed it and immediately returned it to the plaintiffs. This was on October 12, 1903. The next day the package was carried to Paterson, and tendered to the consignee, who refused to accept it, and the defendant placed it with other goods on hand. On February 12, 1904, a claim was made upon the defendant for the goods. The defendant replied by postal card to the plaintiffs that the goods had been delivered to Fabian October 13, 1903, but a few days later wrote again to plaintiffs that Fabian had refused to accept the goods, and asking what disposition should be made of them. Plaintiffs gave no directions, but brought suit, and recovered for the full value of the goods. These facts were proven by the plaintiffs, and are undisputed. They fail to show conversion of the goods in question. Defendant moved at the close of plaintiffs’ case, and renewed the same at the close of the whole case, to dismiss the complaint on the ground that plaintiffs had sued in conversion, but had proven merely a delay in sending notice of consignee’s refusal. This motion was denied. It should have been granted. It is clear that plaintiffs have mistaken their form of action, and the judgment must be reversed.

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