Opinion
February 5, 1926.
Appeal from the Municipal Court, Borough of Manhattan, Fourth District.
Julius Steinberg, for the appellant.
John F. Forrester, for the respondent.
Plaintiff's summons contained a statement of the cause of action as one for "$200 for conversion of personal property," and the answer was, among other items, a general denial. Plaintiff proved a bailment on October 7, 1921, when he stored a fur coat with defendant with an unsuccessful demand for its return in October, 1924.
When defendant undertook to prove that the coat had been stolen in a burglary effected in defendant's store, the evidence was excluded on the ground that it had not been pleaded. We think the evidence was competent under the general denial. (See Schwarz v. Oppold, 74 N.Y. 307; Milbank v. Jones, 141 id. 340, 345, 346.)
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
BIJUR and WAGNER, JJ., concur; DELEHANTY, J., concurs in result.