Wagner Typewriter Co. v. Robinson

84 N.Y.S. 281

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 22, 1903
• Status: Published

Opinion

MacLEAN, J.

In replevin for a typewriter known by a certain number, the plaintiff, by two of its employés in charge of its steel department, and without contradiction, testified to the receipt of the machine from its Buffalo office on April 18th, and to its presence, not on their view, but according to figure appearing on the steel book, in the stockroom, on October ist last and the ist of January of this year; that all machines sold, leased, rented, or exchanged by the company passed through the stock department; that the machine in question was never sold, leased, rented, or exchanged; these employés did not do the leasing, selling, or exchanging; and that the machine never passed through their hands in the regular course of business. Inability to account for an article is not enough. Nor is there proof that it was stolen or wrongfully taken from their ■ possession. The defendant exhibited some title to the chattel by him —testimony to its purchase in midsummer from a person, whom he named. Judgment was rendered that the defendant recover the property mentioned, or, in the event of nondelivery, the sum of $6o, as the assessed value of the property. The award of $6o was error, there being no evidence of its value "beyond the price paid by the defendant for the machine, and so the judgment must be modified by striking therefrom such sum in the alternative.

Judgment modified by striking out such sum in the alternative, and, as modified, affirmed, without costs. All concur.