Lamb v. O'Reilly

New York Court of Common Pleas

Lamb v. O'Reilly

34 N.Y.S. 235, 13 Misc. 212, 68 N.Y. St. Rep. 114

CourtNew York Court of Common Pleas

DecidedJune 27, 1895

StatusPublished

Cited by4 cases

This text of 34 N.Y.S. 235 (Lamb v. O'Reilly) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lamb v. O'Reilly, 34 N.Y.S. 235, 13 Misc. 212, 68 N.Y. St. Rep. 114 (N.Y. Super. Ct. 1895).

Pincite

Opinion

BISCHOFF, J.

Plaintiff brought this action for the conversion of a wagon, wagon robe, and harness, and recovered a judgment for $40. Defendant claimed to hold the chattels as security for the repayment of a loan of $30 made to defendant’s son; the latter being in charge of the plaintiff’s livery stable business, and having delivered the property in question to the defendant. This delivery was made in June, 1894, return demanded by plaintiff in September, 1894, and the action brought in February, 1895, the chattels being still in the possession of the defendant It was shown on behalf of the plaintiff that the wagon, when seen within a week of the trial, was worth no more than $5, by reason of its condition; and the evidence supports a finding that defendant, by the use to which he put the wagon, exercised dominion over it inconsistent with the special right of possession existing by virtue of the lien. Thus there was a conversion at the date when such dominion was exercised, irrespective of the date of demand. 26 Am. & Eng. Enc. Law, pp. 741, 742, and cases cited. And it being undisclosed as to the date of such conversion, or the condition of the chattels at that time, the damage was properly to be proven by showing the value at the date when possession was given to the defendant. Id. pp. 827, 828. From the proof a fair inference is to be drawn that this value was between $70 and $75, and we may support the judgment upon the assumption that defendant’s counterclaim for $30 was allowed. The weight of the evidence is not found to be against the respondent.

Judgment affirmed, with costs. All concur.

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BISCHOFF, J.

Plaintiff brought this action for the conversion of a wagon, wagon robe, and harness, and recovered a judgment for $40. Defendant claimed to hold the chattels as security for the repayment of a loan of $30 made to defendant’s son; the latter being in charge of the plaintiff’s livery stable business, and having delivered the property in question to the defendant. This delivery was made in June, 1894, return demanded by plaintiff in September, 1894, and the action brought in February, 1895, the chattels being still in the possession of the defendant It was shown on behalf of the plaintiff that the wagon, when seen within a week of the trial, was worth no more than $5, by reason of its condition; and the evidence supports a finding that defendant, by the use to which he put the wagon, exercised dominion over it inconsistent with the special right of possession existing by virtue of the lien. Thus there was a conversion at the date when such dominion was exercised, irrespective of the date of demand. 26 Am. & Eng. Enc. Law, pp. 741, 742, and cases cited. And it being undisclosed as to the date of such conversion, or the condition of the chattels at that time, the damage was properly to be proven by showing the value at the date when possession was given to the defendant. Id. pp. 827, 828. From the proof a fair inference is to be drawn that this value was between $70 and $75, and we may support the judgment upon the assumption that defendant’s counterclaim for $30 was allowed. The weight of the evidence is not found to be against the respondent.

Judgment affirmed, with costs. All concur.

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Bluebook (online)

34 N.Y.S. 235, 13 Misc. 212, 68 N.Y. St. Rep. 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamb-v-oreilly-nyctcompl-1895.

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