Gross v. Toder

255 A.D. 964, 8 N.Y.S.2d 446

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1938
• Status: Published

Opinion

Per Curiam.

There was no proof here that appellant has exercised dominion over the property of plaintiff’s assignor in defiance of his rights. Nor was there any satisfactory evidence to establish that appellant ever had exclusive possession, custody or control of the property. “ Conversion, however we define it, involves * * * the element of an unauthorized assumption of dominion over the property of another.” (Mutual Trust Co. v. Merchants Nat. Bank, 236 N. Y. 478, 486. See, also, Industrial & General Trust v. Tod, 170 id. 233, 245; Salt Springs National Bank v. Wheeler, 48 id. 492, 495; White v. Bronson, 120 Misc. 73, 74 [Lehman, J.].) A judgment for plaintiff in the circumstances of this ease was improper. The judgment, in so far as it is against the defendant Max L. Kane, should be reversed, with costs, and the complaint, as to said defendant, dismissed, with costs to the appellant.

Present — Martin, P. J., Glennon, Dore, Cohn and Callahan, JJ.

Judgment, in so far as it is against the defendant Max L. Kane, unanimously reversed, with costs to the appellant, and the complaint dismissed as to said defendant, with costs.