
    Nathan Sonenberg, Resp’t, v. Meyer Levy, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 1, 1895.)
    
    1. Appeal—Inquest.
    Common Pleas will, on appeal, review the evidence, given upon an inquest taken in a district court.
    3. Damages—Conversion.
    In an action of conversion, the value of the chattels at the time of the trial furnishes no basis for a recovery, where they are not shown to be in nature fluctuating as to market value, and no element of malice appears in the case.
    Appeal from a judgment, rendered in favor of plaintiff on defendant’s default after inquest.
    
      Abraham T. Elkus, for app’lt; A. H. Berrick, for resp’t.
   Bischoff, J.

It is the province of this court to review the evidence given upon an inquest taken in a district court, and to reverse the judgment should evidence be insufficient to establish a prima facie case in support of the respondent’s recovery. Jones v. Pridham, 3 E. D. Smith, 155 ; Howard v. Brown, 2 E. D. Smith, 247 ; Vorzimer v. Shapiro, 6 Misc. Rep. 143; 55 St. Rep. 693; Jacobs v. Zellner, 9 Misc. Rep. 455; 61 St. Rep. 104. In this case plaintiff, the assignee of the cause of action, recovered a judgment for §75, apparently the supposed value of certain chattels alleged to have been converted by defendant; but no proper proof of this value appears from the record, and the judgment, therefore, is not to be sustained.

The cause of action for conversion, upon which plaintiff undoubtedly could sue as assignee, Baumann v. Jefferson, 4 Misc. Rep. 147; 53 St. Rep. 116, was predicated of defendant’s failure to return upon demand certain household furniture belonging to plaintiff’s assignor, the original possession of which by defendant was in no way tortious. Upon the question of damages, the only proof adduced was the testimony of plaintiff’s witness given in answer to the question, to the value of the chattels,“What is their value to-day?” The proof thus received fails to afford a basis for the'recovery below. The property was not shown to be in nature fluctuating as to market value, and no element of malice appeared in the case; thus there was nothing to justify a departure from the well-established rule that the recovery should be limited to the value of the chattel at the date of the conversion, with interest. Wehle v. Haviland, 69 N. Y. 448 ; 5 Am. & Eng. Enc. Law, p. 40, and cases cited. We are not to assume, in the absence of proof, that the value at the date of the trial, as given, was not greater than at the date of plaintiff’s demand, which, by reason of various conceivable causes, it might actually have become. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. Restitution ordered of the amount paid by the appellant in satisfaction of the judgment here reversed.  