
    Henry H. Jackson et al., as Executors and Trustees, etc., of Peter A. H. Jackson, Deceased, Respondents, v. Frank Chapman, Impleaded, etc., Appellant.
    (Supreme Court, Appellate Term,
    October, 1899.)
    «Conversion — Demand and refusal as against purchaser at auction.
    A purchaser of goods sold at public auction, who has not since resold them, cannot be held liable for a conversion of them unless a demand has been made of him and he has refused to deliver the goods.
    Appeal by the defendant Chapman from a judgment of the Municipal Court, second district, borough of Manhattan, rendered in favor of the plaintiffs.
    David K. Case, for appellant.
    Joseph A. Kent, for respondents.
   MacLean, J.

The plaintiffs brought this action upon oral pleadings to recover the sum of $200 damages for the alleged conversion of a range and certain other restaurant fixtures. The learned justice rendered judgment in favor of the plaintiffs for $85 damages and $18.50 costs, making a total of $103.50, from which judgment the defendant Chapman alone appeals. As testified by the auctioneer, the defendant Klinger, the goods were sold at public auction to one Biehler, doing business as The Restaurant Furniture Company. The defendant Chapman was Biehler’s bookkeeper. There is no evidence in the case of any demand and refusal of the goods, and, therefore, even if they were bought by Chapman for himself, he could not be held liable for conversion, because of their purchase (Gillet v. Roberts, 57 N. Y. 28, 30), unless he also sold the goods (Pease v. Smith, 61 id. 477, 480), of which there is no evidence.

The judgment should be reversed, with costs.

Freedman, P. J., and Leventritt, J., concur.

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