Pugh v. Kraft

GAVEGAN, J.-

In December, 1907, plaintiff bought defendant’s place of business and entered into possession, receiving from defendant a bill' of sale and giving as purchase price $375 cash and promissory notes for $400, with chattel mortgage as collateral security. A written agreement between the parties provided that none of the chattels were to be removed without the written consent of the defendant. Plaintiff removed three tables and eight chairs, which were not included in the chattel mortgage. The chattel mortgage refers to the articles included in an annexed schedule; but the schedule is nowhere in the case, and is not before us, so that, in the absence of any contradictory testimony, the articles removed may be said to be the property of- the plaintiff, and not included in the mortgage. Neither did the plaintiff default in the payment of his rent. It was not due until March 2, 1908, the first day of the month falling on Sunday, and it appears that plaintiff had sufficient funds for payment. 0 The alleged conversion took place on February 29th. It is not claimed by the defendant that the plaintiff violated any other provisions of their agreement. • .

Upon this state of facts the trial court erred in dismissing the complaint. The veracity of plaintiff and his witnesses was a question for the jury, and, giving plaintiff the most favorable view of the evidence, this appeal having been from a dismissal of his complaint, the jury might well find that the plaintiff had not violated any of the provisions of the agreement at the time defendant seized plaintiff’s chattels. A demand for the return of his property was not necessary. McSwegan v. Hankinson (Sup.) 95 N. Y. Supp. 548. Neither did plaintiff acquiesce in the seizure of his chattels by the defendant, so as to amount to an abandonment, as a matter of law; but, under the circumstances disclosed, it was for the jury to say whether «there was an acquiescence or abandonment. Reich v. Cochran, 114 App. Div. 141, 99 N. Y. Supp. 755.

Substantial justice requires that the judgment dismissing plaintiff’s complaint be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.