Parisi v. Guardian Savings & Loan Co. , 62 N.Y.S. 1094 ( 1900 )

Per Curiam.

In the oral complaint this action was declared to he one for conversion, and, repeatedly, throughout the trial the plaintiffs counsel described the action as one for conversion. The facts are, that, the plaintiff being the owner of a piece of real estate on which there was a mortgage, and also owning several hundred dollars of unsecured debts, made application to the defendant for a loan on mortgage, sufficient to pay off the existing mortgage and the unsecured debts. After an examination of the property, the defendant promised to make the loan, if the plaintiff would pay into the company the sum of $15.30 per month. The plaintiff accepted these terms, and, commencing with September, 1898, paid in certain sums monthly, until he had paid altogether $118.80. It does not appear that the defendant paid out any money for the plaintiff, or took any steps to carry out its part of the agreement. It did present to the plaintiff certain statements purporting to show large payments, to a certificate of the correctness of which plaintiff was induced to sign his name, but, it is evident that he knew nothing about the statements, which are not self-explanatory, and, as to the correctness of which no evidence was presented. The defendant did, however, from time to time, repay to the plaintiff small sums, aggregating $75. He certainly waited a reasonable time for the defendant to carry out its agreement. The facts do not constitute a cause of action for conversion, and, if the objection had been seasonably taken, the justice would have been compelled to give judgment for the defendant. The objection was not taken below, however. The only question litigated on the trial was, as to whether the defendant had received more money from plaintiff than it had repaid to him, or on his account, and at the close of the trial, the only grounds for dismissal, presented by the defendant’s attorney, were that it was not shown that there was anything due the plaintiff, and that if anything was due it would not be until January, 1900. On both of these points the justice found against the defendant and the evidence is sufficient to sustain his finding. The defendant’s unexplained and excessive delay, in carrying out its agreement, warranted the conclusion that it had no intention of ever doing so, and justified the plaintiff in electing to rescind the contract and suing for the recovery of so much of the consideration as had not been repaid to him. Upon the whole, we are satisfied that substantial justice has been done, and the judgment should not be disturbed.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment affirmed, with costs.