Opinion
January, 1905.
Albert A. Wray, for the appellant.
Benjamin E. De Groot, for the respondent.
The practice in this case was irregular. There should have been a decision directing the interlocutory judgment, but instead there is merely an order. The order, even if it could be treated as a decision, is not appealable. The appeal should be from the interlocutory judgment only.
The plaintiff's assignor transferred real estate and other property to the defendant as security for loans. It is alleged in the complaint that the defendant subsequently asserted absolute title to the pledged property and judgment is demanded for the value of the property over and above the amount of the loans on the theory that the assertion of title was a conversion and that it gave the owner an election to treat the transfers as sales. The demurrer was upon the ground that the complaint failed to state facts sufficient to constitute a cause of action. There is no allegation that the pledgee disposed of any of the property, nor is there any allegation of a tender of the amount of the loans and interest and demand for the return of the property. The pledgee was entitled to the possession of the property until the same was redeemed, and the mere assertion of title was not sufficient to constitute a conversion even as to the personal property and of course there could be no conversion as to the realty. Nor did the mere assertion of title give the plaintiff the election to treat the transfers as sales and recover the value of the pledged property over and above the amount of the loans.
It follows that the appeal from the order should be dismissed, with ten dollars costs, and the interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, but with leave to plaintiff to amend upon payment of the costs of the appeal and of the demurrer.
VAN BRUNT, P.J., PATTERSON, INGRAHAM and McLAUGHLIN, JJ., concurred.
Appeal from order dismissed, with ten dollars costs. Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below.