
    New York Central Railroad Company, Appellant, v. Joseph Muszalski, Doing Business under the Name of Lake City Tobacco Company (House), Respondent.
    
    Fourth Department,
    October 6, 1937.
    
      
      J. L. Hurlbert and Samuel L. Drayo, for the appellant.
    
      M. L. Rowe, for the respondent.
    
      
       See 154 Misc. 608.
    
   Per Curiam.

The plaintiff to whom the goods were delivered for carriage was entitled to the possession thereof and such possessory right is a sufficient interest in the goods to enable it to maintain an action for the conversion of the same. (Hudson River R. R. Co. v. Lounsberry, 25 Barb. 597; Kaufman v. Simons Motor Sales Co., 261 N. Y. 146; McCoy v. American Express Co., 253 id. 477, 481.) The evidence shows clearly that defendant did not pay the draft attached to the bill of lading and, therefore, defendant did not acquire title to the goods, and the jury thus found upon sufficient evidence that the defendant wrongfully converted the goods to his own use. The verdict in favor of the plaintiff was just and proper. The fact that the exhibits are not present in the return is no sufficient reason for reversal and dismissal of the complaint. The absence of exhibits cannot be attributed to the fault of the respondent or for that matter of the appellant either. The court should have considered the case upon the return as submitted, assuming, as he says, that it is the best record that can be made.

All concur, Taylor, J., not voting. Present — Sears, P. J., Edgcomb, Crosby, Cunningham and Taylor, JJ.

Judgment of Chautauqua County Court reversed on the law and judgment of the Dunkirk City Court affirmed, with costs to the appellant in this court and in the County Court.  