Opinion
January 9, 1947.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, WHALEN, J.
George J. Stacy and Frank B. Gass for appellant.
Robert Levine and Frederick E.M. Ballon for respondent.
MEMORANDUM
Plaintiff was admittedly indebted to defendant for unpaid rent and it had the right to retain possession of any property stored with it until the debt was paid (Lien Law, § 181). Plaintiff not having paid the same was, therefore, not entitled to immediate possession. Such payment was a condition precedent to making out a cause of action in conversion ( Jackson v. Appleton, 50 Hun 604, opinion in 2 N.Y.S. 787). Moreover, the mere loss of the property does not constitute a tortious conversion ( Salt Springs National Bank v. Wheeler, 48 N.Y. 492, 495; Magnin v. Dinsmore, 70 N.Y. 410, 417).
The judgment should be reversed, with $30 costs, and complaint dismissed, with costs.
HAMMER, SHIENTAG and EDER, JJ., concur.
Judgment reversed, etc.