
    Louis E. Wolff, Appellant, v. Lorenz Zeller, as Assignee, etc., Respondent.
    (City Court of New York, General Term,
    May, 1899.)
    Replevin — A demand is necessary, where the possession is lawful.
    Where a general assignee has become possessed, under his. assignment, of chattels alleged to have been obtaind by his assignor ■ ' thrbugh fraud, the possession thereof by the assignee is lawful and a demand and a refusal upon his part must be shown in order, to make ■ his possession tortious and support an action against him for the recovery of the chattels. <
    
      Appeal from a judgment against the plaintiff, entered upon the decision of the trial judge, dismissing the complaint herein.
    Emanuel Eschwege, for appellant.
    Edward Miehling, for respondent.
   Schuchman, J.

The action is brought to recover certain chattels of the value of $414.80, which plaintiff claims were delivered to the defendant’s assignor, Joseph Herrmann, on the face and strength of certain representations made by said Joseph Herrmann to one Silverman (plaintiff’s assignor) as to his (Herrmann’s) financial condition, which representations were made on January 11/1898, and the said chattels were delivered to said Herrmann on January 12, 1898. .

On June 2, 1898, the said Joseph Herrmann made a general assignment for the benefit of his-creditors to the defendant herein. Plaintiff claims that prior to said assignment, and by reason of the fraud of the said Joseph Herrmann, the. contract of sale for the aforesaid chattels was duly rescinded. .

There is no proof of a valid rescission or abandonment of the contract of sale of the chattels by Silverman to Herrmann. The vendee, Herrmann, remained in possession of the chattels, and the vendee, Silverman, held and continued to hold the notes of the vendee, given for the purchase thereof. Murray v. Harway, 56 N. Y. 337.

By the assignment, the defendant assignee, as aforesaid, became lawfully possessed of the chattels, and to make his possession a tortious one, a demand and refusal was necessary before suit could he brought against him to recover the chattels. There was no proof of a demand of the chattels on the assignee before bringing the action. Goodwin v. Wertheimer, 99 N. Y. 149.

Judgment appealed from affirmed, with costs.

Fitzsimons, Ch. J., and O’Dwyeb, J., concur.

Judgment affirmed, with costs.  