Cole v. . Mann

Rapallo, J. If there had been any conflict in the evidence respecting the title of the plaintiffs to the piano which rendered it proper to submit that question to the jury, we should, in accordance with the settled practice of this court, dismiss the present appeal. The ease came before the General Term on appeal from an order denying a motion for a new trial upon the minutes, and the reversal of that order by the General Term consequently might have been upon questions of fact. The case would not, therefore, be properly appealable to this court. ( Wright v. Hunter, 46 N. Y., 409; Sands v. Crooke, id., 564.) But we are of opinion that there was no such question of fact in the case. The uncontroverted evidence showed a conditional sale only to Jenne, the judgment debtor. The piano was consigned to him, accompanied with a written instrument stating that it was consigned, and that it was to become his property on payment of the price. And upon the face of the note, given by him for the price, it was stated that until such note was paid the piano should remain the property of the plaintiffs. Under such an arrangement the title does not pass to the consignee. (Ballard v. Burgett, 40 N. Y„ 314; Herring v. Hoppock, 15 id., 409.) There was no evidence contradicting or impeaching these documents, or showing that the piano was delivered to Jenne upon any other agreement than that therein expressed. The fact that Jenne was a dealer in pianos, and that authority was given to him to sell the piano in question, provided he remitted the proceeds immediately to the plaintiffs, or made the sale conditional, and took from the purchaser a note similar to the one he had given, recognizing the ownership of the plaintiffs, did ,not operate to pass the title to Jenne. If he sold under this authority, he sold as agent for the plaintiffs. This authority to sell might have an important bearing upon the rights of a bona fide purchaser, to whom he might *5 have sold and delivered the piano without notice of the limitations upon his authority. But it did not affect the question of the title of Jenne as between him or his creditors and the plaintiffs. The defendant was not a bona fide purchaser. He levied on the piano as the property of Jenne, and sold it after being notified of the rights of the plaintiffs, and the character of Jenne’s possession. He acquired no rights superior to those of Jenne, who, as has been shown, was not, by the terms of the contract, to become the owner of the piano until his note was paid. The judge at the Oircuit should have directed the jury to render a verdict for the plaintiffs, as requested (Herring v. Hoppock, 15 N. Y., 409); and the General Term were, therefore, fully justified in granting a new trial on the question of law. The order of the General Term should be affirmed, and judgment absolute rendered for the plaintiffs, with costs. All concur. Order affirmed and judgment accordingly.