ROTH v. HOTEL RIVERSIDE PLAZA

Per Curiam.

Plaintiff was admittedly indebted to defendant for unpaid rent and it had the right to retain possession of any property stored with it until the debt was paid (Lien Law, § 181). Plaintiff not having paid the same was, therefore, not entitled to immediate possession. Such payment was a condition precedent to making out a cause of action in conversion ( Jackson v. Appleton, 50 Hun 604, opinion in 2 N.Y.S. 787). Moreover, the mere loss of the property does not constitute a tortious conversion ( Salt Springs National Bank v. Wheeler, 48 N.Y. 492, 495; Magnin v. Dinsmore, 70 N.Y. 410, 417).

The judgment should be reversed, with $30 costs, and complaint dismissed, with costs.

HAMMER, SHIENTAG and EDER, JJ., concur.

Judgment reversed, etc.