Opinion
June 6, 1972
Order, Supreme Court, New York County, entered April 1, 1971, confirming a Special Referee's report and denying defendant's motion to dismiss the complaint herein for lack of jurisdiction, unanimously reversed, on the law, without costs and without disbursements, plaintiff's motion denied, defendant's cross motion granted and defendant's motion to dismiss the complaint granted, and the complaint dismissed. Plaintiff's complaint sets forth that "On or about November 10, 1969 the plaintiff duly demanded a return of the said (5) watches from the defendant but the defendant failed and refused to comply therewith". This statement is based upon the two letters from plaintiff to defendant, in California, both dated November 10, 1969. In accordance with this demand it is conceded that all of the articles were returned, except the watches, which are the subject of this action. If defendant, who is a California domiciliary, is guilty of conversion, it occurred when he failed to comply with plaintiff's demand and willfully refused to return the watches in question. The fact that defendant may have, once again, in January, 1970, refused to return the watches, which he had already allegedly converted in November, 1969, is not a sufficient basis upon which to predicate jurisdiction. (Cf. Watkins v. Madison County Trust Deposit Co., 24 F.2d 370.)
Concur — McGivern, J.P., Kupferman, Steuer and Capozzoli, JJ.