Porges v. Cohen

Appellate Terms of the Supreme Court of New York

Porges v. Cohen

23 Misc. 703, 52 N.Y.S. 71

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1898

StatusPublished

Cited by3 cases

This text of 23 Misc. 703 (Porges v. Cohen) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Porges v. Cohen, 23 Misc. 703, 52 N.Y.S. 71 (N.Y. Ct. App. 1898).

Pincite

Opinion

Per Curiam.

The order or direction of the justice dismissing the former action instituted to recover the chattels in question ■ “ for failure to place on calendar,” was not a final judgment in that action within the meaning of section 1691 of the Code of Civil Procedure, and did not, therefore, operate as a bar to a recovery in this action. But we think that the judgment should be reversed for the reason that no demand is shown to have been made upon the defendant before the commencement of the action. Where an action is brought, as is the case here, for the wrongful detention of the property, and it does not appear that the original possession of [704]*704the same by the defendant was wrongful, a demand, must be alleged and proved. Furthermore, there is no evidence in the case of the value- of the property sought to be reclaimed which wiH support the finding of the justice fixing the same at the sum of $50. • For these reasons the judgment must be reversed.

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

Present: Beekmae, P. J., Gildeesleeve and Giegeeich, JJ.

Judgment reversed and new trial ordered, with Costs to appellant to abide event. :•

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Per Curiam.

The order or direction of the justice dismissing the former action instituted to recover the chattels in question ■ “ for failure to place on calendar,” was not a final judgment in that action within the meaning of section 1691 of the Code of Civil Procedure, and did not, therefore, operate as a bar to a recovery in this action. But we think that the judgment should be reversed for the reason that no demand is shown to have been made upon the defendant before the commencement of the action. Where an action is brought, as is the case here, for the wrongful detention of the property, and it does not appear that the original possession of [704]*704the same by the defendant was wrongful, a demand, must be alleged and proved. Furthermore, there is no evidence in the case of the value- of the property sought to be reclaimed which wiH support the finding of the justice fixing the same at the sum of $50. • For these reasons the judgment must be reversed.

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

Present: Beekmae, P. J., Gildeesleeve and Giegeeich, JJ.

Judgment reversed and new trial ordered, with Costs to appellant to abide event. :•

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Bluebook (online)

23 Misc. 703, 52 N.Y.S. 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porges-v-cohen-nyappterm-1898.

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