
    Cohen v. Salet.
    (New York Common Pleas
    General Term,
    December, 1892.)
    In an action by plaintiff, as assignee of one J. 0., to recover the value of clothing alleged to have been consigned for sale by plaintiff’s assignor to defendant, the latter admitted the receipt thereof, but denied it was of the value alleged, or that the clothing was the property of plaintiff’s assignor, or consigned to him by the latter, but on the contrary alleged that the same was consigned to him for sale by one B. C., the owner, for whose account it was sold, and that the proceeds, after deducting therefrom the commissions and expenses of sale, as well as a demand existing in favor of defendant against said B. 0., were remitted to the latter. In giving judgment for plaintiff, the trial justice credited defendant with the amount of his claim against B. C. Held, that having credited plaintiff’s claim of ownership, it was error to credit the defendant with the amount of his claim against said B. 0.
    Appeal by plaintiff from a judgment in his favor rendered in a District Court in the city of Rew York.
    Action for conversion of the proceeds of a quantity of ¡clothing alleged to have been consigned to defendant for sale.
    
      A. Morris, for plaintiff (appellant).
    
      A. <& I. Levy, for defendant (respondent).
   Bisohoee, J.

An examination of the proceedings on the trial reveals the justice of plaintiff’s contention that the amount awarded, him in the trial court is inadequate.

Plaintiff sued as the assignee of one Joseph Cohen to recover the value of 300 pieces of clothing alleged to have been consigned by the assignor to the defendant for the purposes of sale, and to have been worth sixty-five cents each. Defendant admitted the receipt of 300 pieces of clothing, of which he alleged 204 were worth forty-five cents each, and the remainder worthless, but he denied that the clothing was the property of plaintiff’s assignor, or consigned to him by the latter, and further alleged that it was consigned to him for sale by one Benjamin Cohen, the owner, for whose account it was sold, and the proceeds, after deducting therefrom the commissions and expenses attending the sale, as well as a demand existing in favor of the defendant against Benjamin Cohen, remitted to the latter.

it is apparent that the trial justice credited plaintiff’s claim of ownership, and that being so, it was error to credit the defendant with the amount of his claim against Benjamin Cohen, on account of the proceeds of the sale of the clothing, which is evident from the fact that the amount awarded plaintiff is but $20.19

The judgment should be reversed, and a new trial ordered, with costs tc abide the event.

Pfyob, J., concurs.

Judgment reversed, new trial ordered, cost to abide event.  