
    Morris Temerson, Appellant, v. Louis Grau et al., Respondents.
    (Supreme Court, Appellate Term,
    December, 1900.)
    Conversion — Will not lie against one out of possession and control of the thing converted.
    Where payees, in lawful possession of a check on a bank, transfer it for value to another and he retains it after payment has been refused, the maker’s subsequent payment of the debt to the payees does not entitle him to maintain conversion against them for the check, as they have lawfully parted with the possession and control ÓT it.
    Appeal from a judgment of the Municipal Oourt of the city of ETew York, borough of Manhattan.
    Louis Levy, for appellant.
    Isidor Cohn, for respondents.
   Beekman, P. J.

This action is brought for the conversion of .a check. The trial justice awarded judgment in favor of the defendants, dismissing the complaint upon the merits. In some respects there was a sharp conflict of evidence which, from the nature -of the judgment, it must he assumed that the court below resolved in a manner most favorable to the defendants. It is not disputed that when the check was delivered by the plaintiff to the defend.ants it represented a sum of money 'that was due from him to the latter. Immediately upon receipt of the same the defendants in-domed it over to one Levy in payment of an equivalent sum, for which, they were indebted to him. Levy thereupon presented the check to the hank upon which it was drawn for payment, which wias refused on the ground that the plaintiff’s account [was not good for any such sum. Apparently, thereafter, the check continued to remain in the possession of Hr. Levy. The contention on the part of the plaintiff is that he subsequently paid the amount of the same to the defendants, but failed at the time to secure its return to him,. He testifies that he subsequently demanded its return by the defendants without success. It is obvious upon this state of facts that no conversion was established. The defendants were originally in lawful possession of the check, and were' acting entirely within their rights in transferring it to Levy, who apparently continued to- he the owner and in possession of the same up to the time of the trial. As the defendants ceased to have any possession of or control over the check, after it had been lawfully transferred by them to Levy, a condition which apparently existed at the time that the plaintiff’s demand was made, it is plain that none of the elements essential to support an action for conversion existed at the time this action was brought. The decision of the trial justice was, therefore, right aud must he affirmed.

Giegebich and O’Gormam, JJ., concur.

Judgment affirmed, with costs.  