Goldbowitz v. Metropolitan Express Co.

I concur, inasmuch as the cause of action originally stated for the plaintiff was stipulated away in the “agreed state of facts.”

This case comes up on an agreed statement of facts, in which statement counsel have agreed that the action is for a conversion.

Plaintiff delivered to the defendant a case containing merchandise, consigned to one Feinstein, 36 Orchard street, this city. The defendant failed to deliver the goods, and, when asked for the return of the same, claimed that they had been lost. This does not constitute conversion of the goods. Rubin v. Wells, Fargo Ex. Co. (Sup.) 85 N. Y. Supp. 1108.

Judgment reversed. New trial ordered, with costs to the appellant to abide the event. All concur.