
    Louis Biel, Respondent, v. Edward H. Horner, Appellant.
    (New York Common Pleas—Additional General Term,
    August, 1894.)
    PlaintifE delivered certain bonds to defendant in exchange for a certificate by the terms of which he was to receive certain securities upon payment of a specified sum in installments. No further payments were made by him, but a return of the bonds was afterwards demanded and refused. No misrepresentation leading to the exchange was claimed. Held, that under these circumstances an action for conversion could not be maintained.
    
      Appeal from a judgment of the District Court in the city of New York for the fourth judicial district, rendered by the justice, without a jury, in favor of the plaintiff.
    Action for conversion of certain bonds.
    
      August P. Wagener, for respondent.
    
      John L. Lindsay, for appellant.
   Bischoff, J.

It appears that the plaintiff’s assignor surrendered the bonds in suit to an agent of defendant, receiving in return a certificate by the terms of which certain securities were to be delivered to the • former upon payment of installments aggregating $300. It is to be gathered from the testimony of the plaintiff’s assignor that the bonds so surrendered were understood to be received in part payment of the total number of installments, and it is admitted that no further payments were made by the said assignor upon the certificate. This action was brought for the conversion of the bonds surrendered as above, and judgment was rendered in favor of the* plaintiff.

While it would appear from the evidence relative to the nature of these instruments that they came within the rule of Kohn v. Koehler, 96 N. Y. 362, and, therefore, were not to be viewed as lottery tickets, yet it is unnecessary to decide the point, since the judgment cannot be sustained upon the pleadings and proof. Granting that the individual to whom the bonds were delivered was the agent of defendant, the evidence fails to establish the fact that the possession, retention or disposal of the chattels thus attributable was in any way tortious. Plaintiff’s assignor voluntarily parted with the bonds, receiving in return the certificate as above noted. No evidence is given as to any attempt upon her part to obtain the benefits contemplated by the transaction, with a resulting failure. There is no claim that misrepresentations in any way led to the exchange of her securities for the certificate received, and we have merely the fact that the transaction took place and that a return of the bonds was subsequently demanded and refused. No remedy lies upon such a state of facts in an action for conversion.

Errors appear in rulings on the trial, hut in view of the •conclusion reached by us upon the facts, it is unnecessary to •discuss them.

The judgment should be reversed and new trial ordered, with costs to appellant to abide the event.,

Bookstaveb, J., concurs.

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