Samuel J. Belfer, Respondent, v. August Diedrick, Appellant

Samuel J. Belfer, Respondent, v. August Diedrick, Appellant. Second Department, June 4, 1909. Conversion — fixtures — ownership of property. In order to maintain an action for the conversion of property attached to realty, the plaintiff must show that he was the owner, or in possession of-the property . removed, at the time of the alleged conversion, and where it is undisputed that the articles in question were removed some months before the plaintiff’s purchase- of the real estate, a judgment in his favor will he reversed and a new trial ordered. Appeal by the defendant, August Diedrick, from, a judgment of .the Municipal Court of the city of Hew York in favor of the plain-1 .tiff, rendered after a trial without a jury. S. Livingston Samuels, for the appellant. Julius S. Belfer, for the respondent. [MAJORITY — Hirschberg, P. J. :] Hirschberg, P. J. : The*plaintiff has recovered a judgment for the sum of thirty-three dollars and sixty cents, with costs and disbursements, for the conversion-of certain articles removed by the defendant from certain premises in the borough of Brooklyn, which premises were purchased by the plaintiff on the 3d day of July, 1908. The plaintiff’s rights, if any, were acquired.solely by the purchase of the real estate. The defendant was employed by a former owner of the property to do carpenter and plumbing work, which work was suspended by order of his employer and the articles in question were thereupon removed by the defendant, he not having been paid for them. As to the bulk of the articles, the evidence is clear and undisputed that they were removed some months before the purchase of the property by the plaintiff. These articles consist of certain bathroom and water-closet fixtures. There is some evidence that three doors which were also removed were in the building at the time of its purchase, but it does not appear whether they were affixed at that time so as to constitute a part of the realty. In the circumstances, it would seem just to require a new trial rather than to reduce the recovery to the insignificant value of the doors. The plaintiff could recover only upon the theory that he was either the owner, or in possession, of the property removed, and as neither fact clearly appears, there must be a new trial. Woodward, Burr, Rich and Miller, JJ., concurred. Judgment of the Municinal Court reversed and new trial ordered, costs to abide the event.