
    Hartwig Mohr, Respondent, v. Nathan Feldman, Appellant.
    Supreme Court, Appellate Term, First Department,
    February 5, 1926.
    Conversion — action for conversion of fur coat to which defendant pleaded general denial — evidence of burglary competent under general denial — exclusion of evidence error.
    In an action for the conversion of a fur coat evidence to the effect that said coat had been stolen in a burglary of defendant’s store was competent under the general denial set up in defendant’s answer, and it was error to exclude said evidence on the ground that it had not been pleaded.
    Appeal by defendant from a judgment of the Municipal Court, Borough of Manhattan, Fourth District, in favor of plaintiff, after a trial by a judge without a jury.
    
      Julius Steinberg, for the appellant.
    
      John F. Forrester, for the respondent.
   Per Curiam.

Plaintiff’s summons contained a statement of the cause of action as one for “ $200 for conversion of personal property,” and the answer was, among other items, a general denial. Plaintiff proved a bailment on October 7, 1921, when he stored a fur coat with defendant with an unsuccessful demand for its return in October, 1924.

When defendant undertook to prove that the coat had been stolen in a burglary effected in defendant’s store, the evidence was excluded on the ground that it had not been pleaded. We think the evidence was competent under the general denial. (See Schwarz v. Oppold, 74 N. Y. 307; Milbank v. Jones, 141 id. 340, 345, 346.)

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

Bijur and Wagner, JJ., concur; Delehanty, J., concurs in result.  