
    William I. Cohn and Joshua Cohn, Copartners, Trading as W. I. and J. Cohn, Respondents, v. Jules Melancon, Doing Business as Original Idea Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    January, 1915.)
    Municipal Courts — conversion — “ wilful injury.”
    Where in an action for conversion it appears that defendant was apparently acting in good faith, openly and under color of title, the action is not for a “ wilful injury ” within the meaning of section 56 of the Municipal Court Act and defendant is not subject to arrest upon a body execution.
    Appeal by the defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, denying the motion of the defendant to amend the judgment by striking therefrom the statement that the defendant is liable to arrest.
    
      Stern, Barr & Tyler (Henry C. Moses, of counsel), for appellant.
    No appearance for respondents.
   Lehman, J.

The plaintiffs herein sued for the conversion of certain goods which the defendant had sold to a third party and which the buyer returned to the defendant after the defendant had assigned the account to the plaintiffs under an agreement that if any goods were returned by the buyer these goods should, be the property of the plaintiffs. The record of the trial comes to us in a somewhat confused form due partly to an amendment of the complaint at the trial which changed the cause of action from fraud to conversion ; partly to the fact that the record fails to include the exhibits offered at the trial; and partly to the fact that apparently with the consent of the parties the case was tried without insistence upon any strict order or method of proof. However as the defendant does not object to the judgment rendered against him for conversion, but appeals from an order denying his motion to amend the judgment by striking out the provision for a body execution, we must consider that the plaintiffs sufficiently proved their cause of action for conversion.

The Municipal Court Act does not authorize an arrest in every action for conversion and in this case the defendant is not subject to arrest unless the action is for a wilful injury ” of plaintiffs’ property. Mun. Ct. Act, § 56. Ordinarily of course the facts proving the conversion may be sufficient also to show that the injury was wilful but in this case the course of dealings between the parties was such that the defendant was apparently led to the honest belief that he had a right to retain goods returned to him upon any account assigned to the plaintiffs unless there was a balance due to the plaintiffs upon all the accounts transferred to the plaintiffs. There seems to be no contention but that the decision in this case rests upon a rather difficult point of construction of the assignments between the parties and inasmuch as the defendant was apparently acting in good faith openly, and under a color of title, I do not think that we can hold that the technical conversion was a wilful- injury.

The judgment should therefore be modified by striking out the words providing for a body execution and the order denying the motion for the relief be reversed with costs to appellant.

Delany and Whitakeb, JJ., concur.

Judgment modified, and order reversed, with costs to appellant.  