Fleischman v. Glaser

59 N.Y.S. 686, 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, 1 N. E. 404; Porges v. Cohen, 23 Misc. Rep. 708, 52 N. Y. Supp. 71. The plaintiff testifies that he never demanded the return of the property, and the bookkeeper of plaintiffs’ vendor, testifying to an 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.

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