Gleason v. Morrison

20 Misc. 4, 44 N.Y.S. 909

• Court: City of New York Municipal Court
• Decided: March 15, 1897
• Status: Published

Opinion

O’Dwyer, J.

This being an action for a conversion of personal property, section 1721 of the Code of Civil Procedure does not apply. Barry v. Calder, 48 Hun 449.

The allegation that “ plaintiff was entitled to the immediate possession of a certain steam pump, his property, theretofore by him let for hire to the defendants,” was a sufficient allegation that the term of hiring had ended, and the court properly denied the motion to dismiss the complaint made at the opening of the case.

The judgment-rolls in the Supreme Court actions (Exhibits A and B.) were properly admitted in evidence.

They established the terms of the lease of the pump to defendants, and in this class of bailments the term ceased upon plaintiff’s demand for his' pump and conversion began upon the pump’s retention after such demand.

A loan of a chattel for hire without specification as to time is a bare license, which may be recalled at any time. Edwards on Bailments, § 138. The bailee refusing to restore on demand is-liable for conversion. Edwards on Bailments, § 152.

The Supreme Court judgment was a complete bar to any attempt to revive the questions of ownership of the chattel by plaintiff and its delivery to and use- by defendants under a contract for hire. The record could not be excluded if it proved any material fact in support of plaintiff’s case. Carleton v. Lombard, Ayres & Co., 149 N. Y. 152.

The property being under the control of the defendants and possession demanded, noncómpliance with the demand that plaintiff be put in possession is prima facie evidence of conversion, and defendants’ denials.of a demand and refusal to return created a conflict of evidence which was properly left to the jury for determination.

The judgment and order appealed from should be affirmed, with costs.

Yak Wyck, Oh. J., and Schuchman, J., concur.

Judgment and order affirmed, with costs.