
    HANSHAFT et al. v. MESA et al.
    (Supreme Court, Appellate Term, First Department.
    June 18, 1914.)
    Trover and Conversion (§ 34)—Actions—Variance.
    In an action for the conversion of personal property installed by one of the defendants in the building owned by the others, evidence by the plaintiff that he showed to the owner of the building a conditional contract of sale of the property to the other defendant, and that he had an understanding that the owner should pay for the property as soon as it •was fixed, established a sale, and not a conversion, and the complaint should he dismissed.
    [Ed. Note.—Eor other cases, see Trover and Conversion, Cent. Dig. §§ 207-214; Dec. Dig. § 34.]
    Appeal from City Court of New York, Trial Term.
    Action by Max Hanshaft and another against Albert R. Mesa and others. Judgment for the plaintiffs, and defendant Borchardt appeals.
    Reversed, and complaint dismissed.
    Argued June term, 1914, before SEABURY, PAGE, and BIJUR, JJ.
    Henry S. Mansfield, of New York City, for appellants.
    Allan A. Deutsch, of New York City, for respondents.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

Plaintiffs sued for the purchase price of some machinery, which had been installed in an apartment owned by the defendant corporation. The appellant had contracted for its installation with the defendant Mesa. After the bulk of the plant had been delivered at appellant’s apartment house, plaintiff called and had an interview with Borchardt, and there claims to have exhibited to Borchardt, or at least to have notified him of the existence of, a conditional bill of sale from plaintiff to Mesa. If this were all, the judgment would be justified as matter of law; but plaintiffs went further, and testified that Borchardt “was to keep the plant with the understanding that we were to get our money as soon as he got these people to fix up the plant,” etc. Thus plaintiffs, on their own case, established a contract of sale between themselves and the appellant, and, the action being predicated' distinctly on conversion, the complaint should have been dismissed-

Judgment reversed, with costs, and complaint dismissed, with costs.  