
    Samuel Schwartz, Appellant, v. William Mylius, Respondent.
    Appeal from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, second district, borough of Manhattan.
    Martin Wechsler, for appellant.
    Wendel & Robeson, for respondent.
   Per Curiam.

Action for conversion. The defendant was the owner and landlord of premises in which one Molnar conducted a restaurant. Molnar was in default for rent, and, on June nineteenth, he and the plaintiff, at a very early hour in the morning, removed the greater portion of the stock and fixtures, leaving the store in charge of a porter, who a few hours later delivered the key to the defendant. There were left in the saloon some fixtures and furniture, two barrels of beer and a small desk worth, according to the testimony, about three or four dollars. The plaintiff had, on May thirty-first, received a bill of sale from Molnar covering, alnong other things, the writing desk, and “ all beer, liquors, brandies and wines in bottles and casks.” This bill of sale had been kept secret at least until June nineteenth, and the goods covered thereby had been left in possession of Molnar, the vendor. Molnar had meanwhile mortgaged the fixtures and furniture to one Feldman, by a chattel mortgage duly filed, conditioned to secure the payment of the debt on demand. After the saloon had been surrendered to the landlord, Schwartz called upon him and said he wished to take the goods away. The testimony is conflicting as to whether Schwartz then notified the defendant that he made this demand as owner, or whether he exhibited his bill o'f sale. Feldman, the mortgagee, subsequently took possession of so much as remained of the furniture and fixtures covered by his mortgage. This he had a right to do, and the plaintiff is not entitled to a judgment for their return or value. As to the two barrels of beer there is no evidence, and no presumption that they were in the saloon when the bill of sale was made on May thirty-first. If they were not, they did not pass to the plaintiff under the bill of sale. As the saloon had been in active business between May thirty-first and June nineteenth, there is no presumption that the beer, found there on June nineteenth, had been there nineteen days previous. As to the desk, which is all that remains, and apparently all that the appellant really thinks he is entitled to judgment for, the evidence is not satisfactory that the plaintiff made a proper demand upon defendant for it. As it came into defendant’s possession lawfully, being in the saloon when possession was surrendered by its apparent owner, a proper demand was necessary before an action for conversion would lie.

Present: Scott, P. J., Beach and Fitzgerald, JJ.

Judgment affirmed, with costs.  