Hoffman House v. Barkley

Ingraham, J.:

■ The nature of the action is stated in the opinion of Mr. Justice Laughlin. We do not concur in his conclusion as-we think the evidence ■ Was not sufficient to justify a finding that this painting, called “ Love’s Surprise/’ ever was the property of C. II. Bead, & Co. or their successors, the Hoffman House corporation. The fact that in .a schedule annexe'd to a mortgage by: the corporation there-was included a painting by Scalbert was not sufficient to justify a finding that this particular painting sued for was ever the property of the plaintiff or of the, corporation to whose rights it succeeded.' The painting is in - the possession of the defendant, and to justify this judgment there must be competent evidence of its ownership by the plaintiff. The evidence shows that Stokes, always treated *565this painting as his private property ; that it was never in the hotel proper or treated by either the copartnership or its.successor as hotel property.

We think, therefore, that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide event.

Patterson and Clarke, JJ., concurred; O’Brien, P. J., and Laughlin, J., dissented.