Fleischman v. Glaser

28 Misc. 555

Opinion

MacLean, J.

This was an action brought to recover property wrongfully detained. As the record fails to show wrongful possession by the defendant, demand and refusal were necessary to constitute wrongful detention. Goodwin v. Wertheimer, 99 N. Y. 149; Porges v. Cohen, 23 Misc. Rep. 703. The plaintiff testifies that, he never demanded the return of the property, and the bookkeeper of plaintiffs’ vendor, testifying to ail inquiry which, if it had been made by or for the plaintiffs, might be called a quasi demand, admits that the plaintiffs never requested him to act either on their behalf or by their authority.

. For this reason, the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Freedman, P. J., and Leventritt, J., concur.

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