Thomas A. McIntyre, Appellant, v. Elmer E. Smathers, Respondent

Thomas A. McIntyre, Appellant, v. Elmer E. Smathers, Respondent. First Department, April 12, 1907. Pleading — complaint stating action for conversion — counterclaim on . contract demurrable, A complaint which alleges the title to personal property in the plaintiff under a promise by the defendant to deliver it upon demand, that demand was made and refused, states an action for conversion and a counterclaim thereto founded upon contract is subject to demurrer. Appeal by the plaintiff, Thomas A. McIntyre, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 15th day of January, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to a counterclaim set up in the defendant’s answer. The defendant sets up a counterclaim founded upon contract. Maurice Léon, for the appellant. John M. Stearns, for the respondent. [MAJORITY — Lambert, J.:] Lambert, J.: If the complaint sets out an action on contract then the counterclaim may be litigated in this action .under- subdivision 2. of section .501 of the Code. If, on the contrary, it is in tort the judgment must be reversed. The complaint alleges the title to the personal property in the plaintiff under a promise by defendant to deliver it upon demand. Demand was made and refused. It is clearly a case where possession by the defendant until demand made was rightful, but the detention after demand is wrongful, and it amounted to a conversion át the election of the plaintiff. The title to the personal property in question is placed in the plaintiff by the allegations of the complaint, with the right of possession upon demand. It must be apparent that a refusal to surrender possession as an incident to the title constituted conversion. The interlocutory judgment should he reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend within twenty days after entry of order and payment of costs. Patterson, P. J., McLaughlin, Houghton and Scott, JJ., concurred. Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend on payment of costs in this court and in the court below.