Thomas P. Beale Furniture Co. v. McGrorty

New York Supreme Court

Thomas P. Beale Furniture Co. v. McGrorty

53 Misc. 643, 103 N.Y.S. 221

CourtNew York Supreme Court

DecidedMarch 15, 1907

StatusPublished

Cited by1 cases

This text of 53 Misc. 643 (Thomas P. Beale Furniture Co. v. McGrorty) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thomas P. Beale Furniture Co. v. McGrorty, 53 Misc. 643, 103 N.Y.S. 221 (N.Y. Super. Ct. 1907).

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Opinion

Davis, J.

This action was brought to recover damages for the conversion of certain articles of furniture. The defendant denies the conversion. He admits that the furniture was delivered to him, but asserts that it was not the furniture ordered by him and that he repeatedly notified the plaintiff to take it away from his place of business. Defendant’s contention on this point was fully sustained by the evidence. In fact it was not denied by the plaintiff. However, the court decided that there was a conversion, but sustained a counterclaim interposed by the defendant for storage of the furniture and rendered judgment for nine dollars in favor of the plaintiff — nine dollars being the difference between the claim of the plaintiff and the storage charges claimed by the defendant. The plaintiff, objecting to the allowance of the storage charges, appeals from the judgment. . The judgment is necessarily based upon a finding of a conversion of the furniture by the defendant. This being so, the allowance of the counterclaim was improper. The conversion by defendant is inconsistent with a claim of storage charges, and such a counterclaim cannot be proved in an action of conversion.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Gildebsleeve and Hendbick, JJ., concur.

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

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Davis, J.

This action was brought to recover damages for the conversion of certain articles of furniture. The defendant denies the conversion. He admits that the furniture was delivered to him, but asserts that it was not the furniture ordered by him and that he repeatedly notified the plaintiff to take it away from his place of business. Defendant’s contention on this point was fully sustained by the evidence. In fact it was not denied by the plaintiff. However, the court decided that there was a conversion, but sustained a counterclaim interposed by the defendant for storage of the furniture and rendered judgment for nine dollars in favor of the plaintiff — nine dollars being the difference between the claim of the plaintiff and the storage charges claimed by the defendant. The plaintiff, objecting to the allowance of the storage charges, appeals from the judgment. . The judgment is necessarily based upon a finding of a conversion of the furniture by the defendant. This being so, the allowance of the counterclaim was improper. The conversion by defendant is inconsistent with a claim of storage charges, and such a counterclaim cannot be proved in an action of conversion.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Gildebsleeve and Hendbick, JJ., concur.

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

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Bluebook (online)

53 Misc. 643, 103 N.Y.S. 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-p-beale-furniture-co-v-mcgrorty-nysupct-1907.

Opinion

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