(dissenting). Plaintiff’s claim for $942.75, a 10% claimed increase in price on shipments made by plaintiff after the letter of September 21, 1948, was properly dismissed. The handles in question in that claim were purchased under the order of March 23, 1948 — and, under the terms of that agreement, no understanding in any way modifying the conditions of the order was binding on defendants unless made in writing and signed by defendants’ authorized representative. Defendants did not consent in writing or otherwise to the 10% increase and there is, therefore, no legal basis for plaintiff’s claim for an additional $942.75.
With regard to defendants’ counterclaim for $3,035 on alleged conversion of defendants’ “ molds ”, defendants had the burden of proof to establish plaintiff’s wrongful possession, defendants’ proper demand and plaintiff’s refusal and proper proof of *127value at the time of the claimed conversion. The only demand testified to in the record is that made by Seymour Troy in September, 1948. But the record conclusively establishes that between that date and up to January 19, 1949, with defendants’ knowledge and consent, plaintiff was using the molds in the making of handles that were delivered to and accepted by defendants. Thus, the fourteen invoices in evidence established that between those dates plaintiff made from the molds in question and delivered to defendants over 90,000 handles and defendants accepted the same. Obviously, while plaintiff, with defendants’ consent, was using the molds and manufacturing the handles for defendants, plaintiff could not have been in wrongful possession of the molds and, therefore, there could have been no possible conversion until after the last delivery on or about January 19, 1949. Up to that date plaintiff, having concededly originally come into lawful possession, was in authorized possession of the molds. Defendants were required to show a proper demand and refusal after possession became wrongful. In the oral testimony there is no demand shown except as above indicated in September, 1948.
Plaintiff sued on October 3, 1949; defendants appeared and interposed an answer which admitted the orders, and the receipt of the merchandise but contested the price; and it was not until March, 1952 (a year-and-a-half after plaintiff’s complaint had been served) that defendants belatedly amended their answer so as for the first time to allege the counterclaim in question claiming conversion by plaintiff. The notice to amend was not served until plaintiff had moved for partial summary judgment, which was granted. Assuming that the notice of this tardy amendment was a demand, there is no proof whatever in the record of the value of the molds at the time of such demand and refusal.
We think, too, that there is no proper proof of value of the chattels at the time and place of the alleged conversion. In fact, there is no proof whatever of value except as of September, 1948, when, as pointed out above, there could not have been wrongful possession by plaintiff.
The jury properly rejected any claim on Exhibit 3, plaintiff’s so-called standard terms and conditions, which were never annexed to or delivered in connection with Exhibit G, the order here in question.
For the reasons stated, I dissent and recommend that the judgment appealed from should be modified so as (1) to affirm dismissal of plaintiff’s complaint, and (2) to reverse the judg*128ment on the counterclaim in favor of defendants in the sum of $3,165; and (3) to dismiss the counterclaim, with costs in favor of plaintiff-appellant.
Peck, P. J., and Bastow, J., concur with Breitel, J.; Dore, J., dissents and votes to modify, in opinion in which Cohn, J., concurs.
Judgment affirmed, with costs.