Rosenkranz v. Jacobowitz

Appellate Terms of the Supreme Court of New York

Rosenkranz v. Jacobowitz

50 Misc. 580, 99 N.Y.S. 469

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 15, 1906

StatusPublished

This text of 50 Misc. 580 (Rosenkranz v. Jacobowitz) 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

Rosenkranz v. Jacobowitz, 50 Misc. 580, 99 N.Y.S. 469 (N.Y. Ct. App. 1906).

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Opinion

■ Gildebsleeve, J.

This action was brought by the plaintiff to recover damages for the alleged conversion of a soda water apparatus. The apparatus had been leased by the plaintiff to a candy store' man, who had left the same upon the premises owned by the defendant, and from which he [581]*581had been dispossessed by the defendant for nonpayment of rent. Demand was made upon the defendant’s janitress for the possession of the property; and such demand was refused by direction of the defendant, evidenced by a letter written by him to the janitress and delivered by her to the plaintiff, in which letter he refused to deliver the soda water apparatus until one month’s rent was paid. We should not be disposed to interfere with the judgment herein were it not for the fact that there is no evidence whatever of the value of the' converted goods, either at or since the time of the conversion. The defendant came lawfully into the possession of the apparatus and a demand and refusal were necessary before an action for conversion would lie. The measure "of damages in such a case is the market value of the goods at the .time of the tortious taking, with interest thereon. The market value is the price at which the goods can be replaced for money in the market. Wehle v. Haviland, 69 N. Y. 448. The only testimony given upon the subject of value was that of the plaintiff, who testified that he gave $520 for the apparatus some time before he leased it to the candy store man, and that of one of his witnesses who testified that, when the apparatus was delivered -to the lessee, it was worth $550 and that two steel cans, which were part of the apparatus, were worth $25 each. This was some time before the time of the alleged conversion. On the part of the defendant it was shown that, at or about the time of the alleged conversion, the plaintiff offered to sell the apparatus for $25. The plaintiff testifies that, two days after his lessee had moved from the defendant’s premises, he went to the store, which was locked, and looked at the apparatus through the window, and it was then “ smashed, corners and all,” and was of no value. It was not shown by "whom it was destroyed. The jury gave a verdict in favor of the plaintiff for $200. There was no evidence upon which such a verdict could have been given.

Davis and Clietch, JJ., concur.

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

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■ Gildebsleeve, J.

This action was brought by the plaintiff to recover damages for the alleged conversion of a soda water apparatus. The apparatus had been leased by the plaintiff to a candy store' man, who had left the same upon the premises owned by the defendant, and from which he [581]*581had been dispossessed by the defendant for nonpayment of rent. Demand was made upon the defendant’s janitress for the possession of the property; and such demand was refused by direction of the defendant, evidenced by a letter written by him to the janitress and delivered by her to the plaintiff, in which letter he refused to deliver the soda water apparatus until one month’s rent was paid. We should not be disposed to interfere with the judgment herein were it not for the fact that there is no evidence whatever of the value of the' converted goods, either at or since the time of the conversion. The defendant came lawfully into the possession of the apparatus and a demand and refusal were necessary before an action for conversion would lie. The measure "of damages in such a case is the market value of the goods at the .time of the tortious taking, with interest thereon. The market value is the price at which the goods can be replaced for money in the market. Wehle v. Haviland, 69 N. Y. 448. The only testimony given upon the subject of value was that of the plaintiff, who testified that he gave $520 for the apparatus some time before he leased it to the candy store man, and that of one of his witnesses who testified that, when the apparatus was delivered -to the lessee, it was worth $550 and that two steel cans, which were part of the apparatus, were worth $25 each. This was some time before the time of the alleged conversion. On the part of the defendant it was shown that, at or about the time of the alleged conversion, the plaintiff offered to sell the apparatus for $25. The plaintiff testifies that, two days after his lessee had moved from the defendant’s premises, he went to the store, which was locked, and looked at the apparatus through the window, and it was then “ smashed, corners and all,” and was of no value. It was not shown by "whom it was destroyed. The jury gave a verdict in favor of the plaintiff for $200. There was no evidence upon which such a verdict could have been given.

Davis and Clietch, JJ., concur.

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

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Bluebook (online)

50 Misc. 580, 99 N.Y.S. 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenkranz-v-jacobowitz-nyappterm-1906.

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