Van Leeuwen v. Fish

30 Misc. 419, 62 N.Y.S. 518

Opinion

MacLean, J.

It appeared in evidence that the plaintiff, under date of November 3, and December 8, 1893, delivered to one Beyer, a retail liquor dealer, a quantity of cigars to be sold for the plaintiff, upon commission, to be accounted for monthly. Thereafter, the defendant took possession of the stock upon the latter’s premises under a sale in mortgage foreclosure, and now claims ownership of the goods in controversy by a bill of sale executed by Beyer, and dated December 15, 1893. There was sufficient evi dence, however, to warrant the jury in finding, as they did, ownership and right to possession in the plaintiff, despite his act in clothing Beyer with actual and apparent power to sell, because the defendant, though' innocent, was not a purchaser for value, surrendering nothing beyond an antecedent debt, insufficient in law. Barnard v. Campbell, 58 N. Y. 13. But, under the circumstances of this case and the decision of Tinsdale v. Murray, 9 Daly, 446, we cannot entertain this appeal.

Freedman, P. J., and Leventritt, J., concur.

Appeal dismissed, with costs.