McCarthy v. James Rowland & Co.

Appellate Terms of the Supreme Court of New York

McCarthy v. James Rowland & Co.

85 N.Y.S. 327

Appellate Terms of the Supreme Court of New York·Decided November 30, 1903·Published

Opinion

PER CURIAM.

In an action for conversion of two books the justice has awarded judgment to the plaintiff for the possession of the chattels, together with $50 damages. There having been no amendment of the proceedings to cover such a result, it is impossible to sustain the judgment. Possession as well as damages (not in the alternative) having been awarded, the damages must be deemed to relate to detention, not to the measure of value, and, eliminating the provision for possession, we cannot properly affirm the judgment, nor do we understand that the respondent desires an affirmance with this modification.

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

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PER CURIAM.

In an action for conversion of two books the justice has awarded judgment to the plaintiff for the possession of the chattels, together with $50 damages. There having been no amendment of the proceedings to cover such a result, it is impossible to sustain the judgment. Possession as well as damages (not in the alternative) having been awarded, the damages must be deemed to relate to detention, not to the measure of value, and, eliminating the provision for possession, we cannot properly affirm the judgment, nor do we understand that the respondent desires an affirmance with this modification.

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

McCarthy v. James Rowland & Co., 85 N.Y.S. 327 (N.Y. Ct. App. 1903).

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