Khan

Plaintiff was given judgment against both defendants for the possession of a diamond ring or the value thereof in case delivery could not be made.

[1] It is contended “that there is no basis for the judgment against defendant Perky. The evidence shows without dispute that he was a salesman in the store of defendant Zemansky. ’ ’ The complaint alleges that the defendants came into possession of the ring and retained possession thereof. The answer alleges “that on or about the tenth day of March, 1920, said plaintiff left with said defendants a diamond ring, which was the only diamond ring claimed, or in the possession of plaintiff, of which defendants or either of them ever had possession, to be sold by defendants . . . and said diamond ring was, on or about the nineteenth day of March, 1920, by said defendant, Abe Zemansky, given and returned to the possession of said plaintiff.” It is thus plain that the only issue to be tried was whether the ring had been returned. The evidence bearing on this issue was sharply conflicting. There was ample evidence, if believed, to support the implied finding of the jury that the ring had not been returned. Since the answer admits that both…