#### Giovanni Scaglione, Appellant, *v.*Louis Brooks, Respondent.

Second Department,

December 5, 1913.

Replevin — action to recover automobile leased to defendant — erroneous nonsuit — pleading—demand for return of chattel.

Action of replevin brought to recover an automobile which the plaintiff had rented to the defendant under an agreement providing that in case of default in payment of rent the plaintiff might retake possession. The defendant having defaulted in the payment of rent, after a demand for payment by the plaintiff, who was illiterate, gave him two postdated checks for a sum greatly in excess of the amount due for rental. On all the evidence, *held,*that a judgment dismissing the complaint should be reversed and a new trial granted.

The complaint in an action of replevin should not be dismissed upon the ground that there is no proof of a demand by the plaintiff for the return of the chattel, where such demand is alleged in the complaint and is not denied in the answer.

Appeal by the plaintiff, Giovanni Scaglione, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 26th day of June, 1913, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

*Edward J. Reilly,*for the appellant.

*Ben W. Slote,*for the respondent.

*574Stapleton, J.:

This is an action to recover a chattel •— an automobile of the value of $800 — which the plaintiff owned and which he rented to the defendant at a weekly rental of $10, the rental agreement containing the provision that in case of default in the payment of any weekly installment the plaintiff might resume possession. The defendant was in default of payment. After frequent demands for payment on the part of the plaintiff defendant gave the plaintiff, who was old, unfamiliar with the English language and of defective sight, two checks aggregating $500. The plaintiff, on discovering with the aid of another person the purport of the checks, immediately returned to the defendant’s office. He endeavored upon the trial to tell what then took place, but was prevented by the objection of the defendant’s counsel and the ruling of the trial court. The complaint was dismissed at the close of the plaintiff’s case.

The recitation of the evidence is meagre because the evidence itself is such. It was sufficient, however, to have authorized the jury to find that the plaintiff owned the automobile and was entitled to its possession under the terms of the agreement of rental, and that upon demanding past due rental he received post-dated checks for a sum greatly in excess of the amount due for rental. It is clear that he made an effort to show that the defendant tricked him by handing him checks and claiming they were payments upon a sale.

The defendant attempts to sustain the dismissal upon the ground that there was' no proof of a demand for the return of the chattel, which was lawfully in the possession of the defendant under the agreement of rental. Evidence of a demand was unnecessary, as a demand was alleged in paragraph VI of the complaint and not denied in the answer. The judgment should be reversed.

The judgment and order of the County Court of Kings county should be reversed and a new trial ordered, costs to abide the event.

Jenks, P. J., Thomas, Carr and Putnam, JJ., concurred.

Judgment and order of the County Court of Kings county reversed and new trial ordered, costs to abide the event.