
    Antonio Musica, Appellant, v. Vito Amalfitano, Respondent.
    (Supreme Court, Appellate Term,
    November, 1907.)
    Municipal Courts: Procedure — Judgment — Power to modify; Review — Decision — Power to modify judgment.
    Conversion (Tortious) — Demand and refusal — Effect. •
    In an action in the Municipal Court of the city of New York the justice who renders a money judgment in favor of the plaintiff has no power, on the plaintiff’s motion not made at the close of the trial nor on notice, to defendant, to modify the judgment by stating therein that the defendant was subject to arrest and imprisonment; and, having made such an order, properly vacated it on defendant’s motion.
    Upon plaintiff’s appeal from the judgment to the Appellate Term, however, the appellate court can, in a proper ease, modify the judgment by inserting the words requisite to authorize an execution against the person; but, where it. appears that the action was for the alleged conversion of goods which defendant agreed to hold in trust as plaintiff’s property until a certain note should be paid, with privilege to sell them and pay the proceeds to plaintiff, and that the note had not been paid and the goods had not been returned when demanded, but it did not appear either that the goods were in defendant’s possession or that they had been sold and any proceeds received, and defendant testified he had sold the goods but had not received any proceeds therefor, the plaintiff failed to establish a conversion.
    Appeal by the plaintiff from a judgment rendered in his favor and against the defendant in the Municipal Court of the city of Hew York, thirteenth district, borough of.Manhattan, and from an order vacating an order modifying the judgment.
    Carter & Haskell, for appellant.
    Quiseppe L. Maggio, for respondent.
   Leventritt, J.

The action is for conversion. A verified complaint was served with the summons and, on the return day, the. defendant pleaded a general denial. The trial which followed was concluded on the 2d of May, 1907. On the fourteenth of May the trial justice rendered the usual money judgment in favor of the plaintiff, without stating therein that the defendant was subject to arrest and imprisonment. Upon discovering this omission, the plaintiff’s attorneys, three days later, made an ex parte application to the trial justice for an amendment of the judgment by the insertion of such a provision and, on the twentieth of May, the justice amended the judgment accordingly. When the defendant learned that the amendment had been made, he obtained an order to show cause, baaed upon affidavits, why the inserted provision should not be stricken out and the judgment restored to its original form. On the hearing of the motion the plaintiff submitted a counter-affidavit. The motion was granted, the original judgment was restored, and the defendant, who bad theretofore been taken into custody under a body execution, was discharged. The appeal under consideration was thereafter taken from the revocation of the order of modification, and also from the judgment in so far as it did not provide for the arrest of the defendant.

The justice was powerless to make the amendment, because it was made neither at the close of the trial nor upon a two days’ notice of motion as required by section 254 of the Municipal Court Act. He could not, upon the application of either party without format notice to the other, make an order amending or modifying the' judgment. Ryan v. Brown, 61 Misc. Rep, 67; Barron v. Feist, 51 id. 589; Lackuer v. American Clothing Co., 112 App, Div, 438, The justice had no alternative, therefore, except to undo his unauthorized act by making the order appealed from.

The appeal from the judgment, however, brings up for review the omission to add the indorsement which would entitle the plaintiff to a body execution under section 251 of the Municipal Court Act. If the facts disclosed on the trial were such as to justify the issuance of that process, we could modify the judgment by directing the insertion of the words “ Defendant liable to arrest and imprisonment on execution.” Ostrom v. Sapolsky, 49 Misc. Rep. 610.

The plaintiff alleged a cause of action in conversion and proved the sale and delivery to the defendant of certain merchandise under an agreement in these words:

“ Received from A. Música of Eew York the merchandise specified in the invoice dated Dec. 20/06, Jan. 9/14/30/07, and shipped from-marks and numbers being A. M. 258 Bx Macaroni, 62 Bx Macaroni, 1 case cheese, 5 Bales fish, 1 Drum fish, and in consideration thereof I agree to hold said merchandise oil storage as his property, in trust, until the notes given or to be given as the purchase money of said merchandise under a credit issued to me and any other indebtedness to said A. Música shall have been paid or satisfactorily provided for.
“ It is understood that I shall be at liberty to sell the said merchandise and hand the proceeds, when received, to said A. Música as security 'for due provisions for said acceptances and indebtedness, and also, that I shall keep the same insured against fire, payable, in case of loss, to said A. Música, who is hot to be chargeable with any expense thereon. The intention of this arrangement is to protect and preserve unimpaired the title of said A. Música to said merchandise.
“ (Signed) Vito Amaluitako.”

He further testified that the note referred to in the agreement had not been paid and that the merchandise had not been returned upon demand. He did not show, however, either that the goods were in defendant’s _ possession or that they had been sold and any proceeds received. . Since, under the agreement, one of these conditions was an element essential to the proof of conversion, the plaintiff failed to establish the cause of action pleaded. Furthermore, the defendant testified that he had sold all the merchandise and that he had not received any of the proceeds therefor.

Under these circumstances, the plaintiff was entitled merely to a judgment in the form rendered by the learned trial justice.

The judgment and order appealed from must be affirmed.

Gildersleeve and Erlakger, JJ., concur.

Judgment and order affirmed.  