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Corotinsky v. Cooper

26 Misc. 138 Court N.Y. App. Term English

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p. 138
Ephraim Corotinsky, Respondent, v. Michael Cooper, Appellant.
(Supreme Court, Appellate Term,
January, 1899.)

Headnote

Conversion — Unlawful interference of lessee — Demand.
The acts of a lessee of a button-hole machine, in misusing it, in re- . moving certain of its parts and in attaching them to a machine of his own, show an unlawful assumption of dominion over the machine which makes the lessee liable to an action for its conversion and no prior demand of possession is necessary.
Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of ¡New York, borough of Manhattan, fifth district.
Samuel I. Frankenstein, for appellant.
John Bogart, for respondent.

This action was brought for the conversion of a button-hole machine which had been rented by the plaintiff to the defendant. The ground relied upon in support of the claim is that the machine was in bad order owing to the manner in which it had been used by the defendant, and that certain of its constituent parts had been removed and attached by the defendant to another machine that either belonged to him or was in his use at the time.

It is well settled that such an act constitutes a conversion of the whole property. Bowen v. Fenner, 40 Barb. 383 . As it constitutes evidence in itself of an unlawful assumption of dominion over the property, no demand is necessary as a condition precedent to the maintenance of an action therefor.

It is true that the evidence was not at all as satisfactory as could be desired, but we cannot say that there was not sufficient upon which to rest a verdict for the plaintiff, and the jury having found in his favor, their action in that regard should not be disturbed on appeal. We also think there was sufficient competent evidence of value before the jury to support the assessment of damage which they made. The judgment must be affirmed.

Present: Beekman, P. J., Gildersleeve and Giegerich, JJ.

Judgment affirmed, with costs.

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