Abramson v. Brimberg ( 1910 )

LEHMAN, J.

The plaintiff alleged and proved a cause of action for the conversion of goods. Although the original possession of the defendants was lawful, yet with notice of the rights of the true owner, and regardless thereof, they asserted hostile dominion and a claim of ownership, by sale to other parties. No demand was therefore necessary. Bahr v. Boley, 50 App. Div. 577, 64 N. Y. Supp. 200. “It has been repeatedly held that where it appears that the defendant has put himself in a position so that he is unable to comply with a demand, by a sale of the property, no demand is essential.” Torres v. Rogers, 28 Misc. Rep. 176, 58 N. Y. Supp. 1104; Kavanaugh v. McIntyre, 128 App. Div. 722, 112 N. Y. Supp. 987.

1 The plaintiff has shown all the facts necessary to bring the case within the provisions of subdivision 3 of section 56 of the Municipal Court act. The trial justice failed to insert in the judgment any provision for the arrest of the defendants. Upon an appeal from the judgment, even though the plaintiff has failed to move in the court below for a modification or amendment thereof, we have the power to modify by inserting the words: “Defendants liable to arrest and imprisonment on execution.” Ostrom v. Sapolsky, 49 Misc. Rep. 610, 96 N. Y. Supp. 1070.

The judgment should be so modified; but, since the plaintiff might have obtained the same relief by motion in the court below, it should be affirmed, as modified, without costs. All concur.