Shapiro v. Lankay

Bischoff, P. J.

The action was to recover specific personal property, a quantity of merchandise, possession of which was delivered to the defendants by Samuel Bernstein, Charles Bernstein and Isadore Bernstein, composing the firm of Gotham Hovelty Company, the former owners and the plaintiff’s alleged assignors. The court below gave judgment for the plaintiff for the return of the property, or its value, if such return could not be had. In this view of the case, however, the recovery is exposed to successful challenge for failure of proof of the plaintiff’s title to the property in suit.

Concededly, the Messrs. Bernstein were the owners of the property, and the plaintiff’s claim of right to its recovery was predicated wholly of an alleged transfer thereof by such o-wners to Vn'm. A paper was offered and received in evidence, against the defendants’ objection, which purported to “ sell, assign, transfer and set over ” to the plaintiff all the “ right, title and interest ” of the Messrs. Bernstein “ In and to a certain claim which they had against Jacob Lankay and Isaac L. Cohen, doing business under the firm name or style of J. Lankay and Company, of the City, County and State of New York, amounting to the sum of $144.79.” That the claim alluded to in this paper had reference to the property in suit was left to the veriest conjecture. If, however, we regard the claim as one arising upon a sale or from the conversion of the property in suit, then, self-evidently, the plaintiff did not derive title to the property by means of the paper, since the assertion of a claim for the value of the property is in distinct repudiation of any continued claim to the property itself. No other evidence in attempted support of the plaintiff’s claim of title was adduced.

If it is urged upon the record that the defendants had tacitly consented to the litigation of an issue other than that made by the pleadings (Frear v. Sweet, 118 N. Y. 454), to wit, conversion, and that, in that aspect, the paper alluded to was a sufficient investiture of the right to recover, it should be observed that the judgment is not secundum allegata et probata (Day v. New Lots, 107 N. Y. 148; Romeyn v. Sickles, 1 Silv. Ct. App. 594), it being consistent only with the former issue.

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

Leventritt and Clarke, JJ., concur.

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