Stemples v. Schwab

218 A.D. 282, 218 N.Y.S. 284, 1926 N.Y. App. Div. LEXIS 5914

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 11, 1926
• Status: Published

Opinion

Per Curiam.

The only evidence as to what property was converted was given by plaintiff as follows: “ He took dining-room suite and buffet and kitchen stove. Thai is all.” There is no other evidence as to the nature or number of the articles, their material, style, workmanship, quality or condition. They had been in use more than nine months. When new they had been bought with other property by another party who sold them to plaintiff. There is no identification of these particular articles in question with reference to their original selling price with the exception of the stove. Plaintiff bought them together with other property and an unexpired lease, all for the sum of $200. There is no other evidence as to the price paid on either sale for these particular articles in question and no other evidence of value was given. There is, therefore, a failure of proof as to the value of the property at the time of the conversion. For this reason the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concur.

Judgment and order reversed on the law and facts and new trial granted, with costs to the appellant to abide the event.