
    Nicanor Torres, Appellant, v. George M. Rogers, Respondent.
    (Supreme Court, Appellate Term,
    June, 1899.)
    Replevin — Demand unnecessary wAere the defendant has sold.
    Where the subject of an action of replevin has been sold and delivered by the defendant to a third party, no demand of the defendant is necessary as he has put himself in a position where he cannot comply with it.
    Appeal by the plaintiff from a judgment rendered in the Municipal Court, second district, borough of Manhattan, in favor of the defendant, dismissing the plaintiff’s complaint.
    Gignoux & Gignoux, for appellant.
    Holm & Smith, for respondent.
   Freedman, P. J.

At the close of the testimony on the part of the plaintiff in this case, the court below, on its own motion,, dismissed the complaint, on the ground that there was shown to be a copartnership existing between the parties. On this appeal, therefore, the plaintiff is entitled to the benefit of every fact that the court could have found from the evidence given, and to every legitimate inference warranted by the proofs. McNally v. Phoenix Ins. Co., 137 N. Y. 389.

The action was brought in replevin to obtain the possession of four machines called projectographs.

The defendant admitted in his answer and also upon the trial, that he had taken the machines in question and had sold them, but averred as a defense, that he was a partner with the plaintiff, and had a right to thus dispose of the property. The testimony shows that in October, 1898", the parties to this action ordered of one Dalgetty twenty-five projectographs to be manufactured for their use. At the time this order was given, it does not appear that any partnership existed between the parties, but on December Í9, 1898, an agreement in writing was executed by the plaintiff and the defendant, by the terms of which they each agreed, among other things, to invest the sum of $250 in the business. It appears that a short time thereafter, the defendant having failed to pay into the partnership said sum of $250, the plaintiff purchased the interest of the defendant in the business, paying him $32.35 in cash and delivering to him a quantity of pictures, and that thereupon the defendant moved out of the store formerly kept under the name of Rogers & Torres, and went into a place of business a few doors distant. In January, 1899, the plaintiff ' having paid for the machines in question, Dalgetty, the manufacturer, delivered them to an expressman, with orders to deliver them to the plaintiff. The expressman, by mistake, went to the defendant’s place of business and delivered them to the defendant, who received them in person, evidently knowing they were intended for the plaintiff, and that the expressman was laboring under a mistake in so delivering them to the defendant. The facts shown by the testimony and the only legitimate inference that can be drawn therefrom is that the plaintiff had, prior to this transaction, purchased and succeeded to all the interest of the defendant in the copartnership business and that the defendant had no right to the property in question. It is urged by the appellant that the plaintiff failed to show that any demand for the return of the property had been made before the commencement of the action. This was not necessary because the defendant admitted in his answer that he had taken and sold the machines. It has been repeatedly held that where it appears that the defendant has put himself in a position so that he is unable to comply with a demand, by a sale of the property, no demand is essential. Judgment should be reversed.

MacLeae and Leveeteitt, JJ., concur.

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