
    Isaac T. Brown, Respondent, v. Mary C. Leary, as Administratrix, etc., of James D. Leary, Deceased, Appellant.
    
      Interlocutory judgment on demurrer—it should, be entered, on a decision —the decision is not appealable — the meie assertion of ownership by a pledgee is not a conversion, nor does it entitle the pledgor of property to sue for damages.
    
    An interlocutory judgment overruling a demurrer should be entered upon a decision and not upon an order. Such a decision is not appealable, anil the appeal should be from the interlocutory judgment alone.
    The complaint in an action alleged that the plaintiff’s assignor transferred real and personal property to the defendant as security for loans, and that the defendant subsequently asserted absolute title to the pledged property. The plaintiff-demanded judgment for the value of the pledged property over and above the amount of the loan. The complaint did not allege that the defendant had disposed of any of the pledged property, or that the plaintiff or his assignor had tendered the amount of the loan and interest and demanded the return of the property.
    
      Held, that the complaint was demurrable;
    
      That the mere assertion of title did not constitute, a conversion of the personal property, and that there could he no conversion of the real property;
    That the mere assertion of title did not confer on .the plaintiff an election to treat the transfers as sales and to recover the value of the pledged property over and above the amount of the loan. "
    Appeal by the defendant, Mary 0. Leary, as" administratrix, etc., ■of James D. Leary, deceased, from an intérlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ÍÑfew York on the 27th day of June, 1904, upon an order entered in said clerk’s office on the 21st day of June, 1904,,overruling the defendant’s demurrer to the plain-, tiff’s complaint, and also'from the said order upon which such inter-' • locütory judgment was entered. ' '
    
      Albert A. Wray, for the appellant.
    
      Benjamin E. De Groot, for the respondent.
   Laughlin, J,:

The practice in this case was irregular. . There should have been a decision directing the interlocutory judgment,'but instead there is ■merely an order.- The order, even if it 'could- be treated as a decision, is not appealable. The appeal should be from, the interlocutory judgment only.

The plaintiff’s assignor transferred real estate and other ..property • to the defendant as security for loans. It is alleged in the complaint that the defendant subsequently asserted absolute title tó the pléd'géd property aiid judgment is demanded for the value of the property over and above the amount of the loans on the theory that the assertion of title was a conversion and that it gave the owner an election to treat the transfers as. sales. The demurrer was upon the ground that the complaint failed to state facts sufficient to constitute a cause of action. There is no allegation that the pledgee disposed of any of the property, nor is there any allegation of a tender - of the, amount of the loans and interest and' demand for the return of the property. The pledgee was entitled to the possession of the'property until the same was redeemed, and the, mere assertion of title was not sufficient to constitute a conversion even as to the personal, property and of course there could be no conversion as to the realty. Nor did the mere assertion of title give the plaintiff the election to treat the transfers as sales and recover the value of the pledged property over and above the amount of the loans.

It follows that the appeal from the order should be dismissed, with ten dollars costs, and the interlocutory judgment should be reversed, with costs, and tlie demurrer sustained? with costs, but with leave to plaintiff to amend upon payment of the costs of the appeal and of the demurrer.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Appeal from order dismissed, with ten dollars costs. Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below.  