Van Brunt v. Oestreicher

29 Misc. 340, 60 N.Y.S. 505

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 15, 1899
• Status: Published

Opinion

MacLean, J.

Under an oral plea of conversion, the plaintiff testified that she ordered a coat to be made for her by the defendant, a lady’s tailor, that when the garment was sent she was about to leave the city, but supposing that the garment would be as ordered, she paid the price agreed upon; afterwards, discovering that the garment did not fit, she returned it, as she also did again after a failure by the defendant to make it as it should be; then she demanded repayment of the money, which was refused. She never demanded the garment. This evidence was insufficient to sustain an action wherein the plaintiff is required to prove that the defendant exercises dominion over the property in exclusion or in defiance of the owner’s right. The judgment should be reversed and a new trial ordered.

Fbeedmae, P. J., and Leveetbitt, J., concur.

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