
    Mary Goodman, Respondent, v. Samuel Baumann and Jacob Baumann, Appellants.
    (Supreme Court, Appellate Term,
    February, 1904.)
    Municipal Court of the city of New York — Jurisdiction — When an action is not upon a chattel mortgage — Cost price when evidence of value.
    The Municipal Court of the city of New York has jurisdiction of an action brought by a chattel mortgagor against the mortgagee for selling the mortgaged chattels by mistake after receiving them back from her after default and agreeing to keep them for her until she was financially able to take them again, as such an action arises on the bailment to keep the chattels, and not on the chattel mortgage, and therefore is not within the prohibition of section 139 df the Municipal Court Act (L. 1902, ch. 580).
    Where the identity of goods is lost, their agreed cost price is evidence of their value.
    Appeal by defendants from a judgment of the Municipal Court of the city of New York, twelfth district, borough of Manhattan, rendered in favor of plaintiff on November 4, 1903, for the sum of seventy-one dollars and forty-one cents.
    George Hahn, for appellants.
    David O. Myers (Maurice Goodman, of counsel), for respondent.
   Davis, J.

This action was brought to recover fifty-six dollars and fifty cents, as damages for the conversion of certain household furniture. On December 10, 1901, the plaintiff purchased from the defendants certain household furniture at the agreed price of eighty dollars, and at the time of the purchase executed a chattel mortgage to the defendants upon this property for the purchase price, agreeing to pay eight dollars on the signing of the mortgage and one dollar and fifty cents each week thereafter until the whole sum was paid. The mortgage provided, among other things, “ that in case default shall he made in the payment of the sum aforesaid, or any part thereof, the whole amount expressed in the mortgage shall become due and payable at once without demand.” On December 11, 1901, plaintiff purchased from defendants other household furniture at the agreed price of twenty-eight dollars and twenty-eight cents, and executed another chattel mortgage to defendants upon these latter goods for the purchase price, agreeing to pay one dollar at the signing of such mortgage and twenty-seven dollars thereafter on demand.

The goods were delivered and plaintiff had paid, up to about May, 1903, the sum of fifty-six dollars and fifty cents under said mortgages. Since May, 1903, no payments have been made. In June, 1903, plaintiff, being then in default in her payments, went to,- defendants and asked them to receive and keep the furniture for her until such time as she could get it, stating at the time that her husband was out of work and just as soon as he got a position she would take back the furniture. The defendants agreed to do this, and thereafter came and took possession of the furniture. About October, 1903, the plaintiff called on defendants and requested the redelivery of her furniture. She was informed by defendants that through some mistake it had been disposed of. The plaintiff has never received the furniture and seeks to recover as damages for the failure of defendants to return it an amount equal to what she had paid them under the chattel mortgage.

The only witness in the case was the plaintiff, the defendant offering no evidence.

The claim that the court had no jurisdiction is not well founded. This is not an action arising out of a chattel mortgage, but one arising out of a contract of bailment between plaintiff and defendants, by which defendants agreed to receive and keeps the goods until plaintiff called for them. Section 139 of the Municipal Court Practice Act. Chapter 218, Laws 1901, therefore, has no application here.

The agreement to take and keep the goods for plaintiff, and the actual taking thereof by defendants and the uncontradicted testimony that they disposed of them by mistake, show that it was the intention of defendants to waive any default of plaintiff under the mortgages. Defendants accepted the goods as bailees and were under a duty to return them to her as agreed. On demand, she was entitled to the possession.

Under the special circumstances of this case the price agreed upon between the parties as the cost price was evidence of their value. The identity of the goods was lost, and their value could be proved in no other way. Parmenter v. Fitzpatrick, 135 N. Y. 190; Latimer v. Burrows, 163 id. 7, 9.

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs.  