American Lumber & Manufacturing Co. v. Wyoming County National Bank & Trust Co. , 255 A.D. 924 ( 1938 )

Judgment and order affirmed, with costs. Memorandum: The action is for conversion. Plaintiff, through mistake, delivered a carload of lumber to one of its customers. The customer offered to return the lumber to plaintiff if plaintiff would agree to pay the necessary expenses, or to store the lumber for plaintiff without charge. Whether subsequent correspondence and conduct between plaintiff and its customer in respect to the lumber, resulted in the passing of the property in the lumber from plaintiff to its customer, was a question for the jury. The lumber was sold under an execution levied under a judgment in favor of a creditor of plaintiff’s customer. Defendants claimed title by virtue of the execution sale and refused plaintiff's demand for the surrender of the lumber. The record discloses sufficient evidence to support the finding of the jury that title did not pass from plaintiff to its customer and that defendants converted plaintiff's property to their own use. All concur. (The judgment is for plaintiff in an action for conversion. The order denies a motion for a new trial.) Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.