
    Joseph Rosenkranz, Respondent, v. Morris Jacobowitz, Appellant.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Conversion (tortious) ■— Demand and refusal — Necessity of demand.
    Damages — Measure for torts — Liability for conversion — Time and place of estimating value — Market value.
    Where a landlord, upon dispossessing a tenant for non-payment of rent, comes into possession of a soda water apparatus, leased by a third person to the tenant for use in his business, no action for conversion lies against the landlord until after a demand and refusal to deliver the property.
    The measure of damages in such case is what the apparatus could have been replaced for in the market at the time of the tortious taking, with interest.
    Where plaintiff testifies that the property, when delivered to the tenant, was worth $600, but it is shown that, at or about the time of the alleged conversion, he offered to sell it for $25, and he also testifies that he saw the apparatus two days after his lessee had removed from defendant’s premises and it was then “ smashed, corners and all ” and of no value, a judgment in his favor will be reversed for want of evidence of the value of the apparatus at the time of the alleged conversion.
    Appeal by the defendant from a judgment of the City Court of the city of Yew York, entered in favor of the plaintiff after a trial before the court and a jury, and also from an order denying defendant’s motion for a new trial.
    C. Monteith Gilpin (Charles C. Eeiley, of counsel), for appellant.
    Schleimer & Schleimer (Abraham B. Schleimer, of counsel), for respondent.
   ■ Gildebsleeve, J.

This action was brought by the plaintiff to recover damages for the alleged conversion of a soda water apparatus. The apparatus had been leased by the plaintiff to a candy store' man, who had left the same upon the premises owned by the defendant, and from which he had been dispossessed by the defendant for nonpayment of rent. Demand was made upon the defendant’s janitress for the possession of the property; and such demand was refused by direction of the defendant, evidenced by a letter written by him to the janitress and delivered by her to the plaintiff, in which letter he refused to deliver the soda water apparatus until one month’s rent was paid. We should not be disposed to interfere with the judgment herein were it not for the fact that there is no evidence whatever of the value of the' converted goods, either at or since the time of the conversion. The defendant came lawfully into the possession of the apparatus and a demand and refusal were necessary before an action for conversion would lie. The measure "of damages in such a case is the market value of the goods at the .time of the tortious taking, with interest thereon. The market value is the price at which the goods can be replaced for money in the market. Wehle v. Haviland, 69 N. Y. 448. The only testimony given upon the subject of value was that of the plaintiff, who testified that he gave $520 for the apparatus some time before he leased it to the candy store man, and that of one of his witnesses who testified that, when the apparatus was delivered -to the lessee, it was worth $550 and that two steel cans, which were part of the apparatus, were worth $25 each. This was some time before the time of the alleged conversion. On the part of the defendant it was shown that, at or about the time of the alleged conversion, the plaintiff offered to sell the apparatus for $25. The plaintiff testifies that, two days after his lessee had moved from the defendant’s premises, he went to the store, which was locked, and looked at the apparatus through the window, and it was then smashed, corners and all,” and was of no value. It was not shown by "whom it was destroyed. The jury gave a verdict in favor of the plaintiff for $200. There was no evidence upon which such a verdict could have been given.

Davis and Clietch, JJ., concur.

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