Kent-Costikyan Trading Co. v. American Railway Express Co.

Per Curiam: Plaintiff sues for damages caused by the breakage of a lamp in transit. The lamp was ordered by three ladies to be delivered by express to a fourth as a gift. The defense is that the title passed from the plaintiff either to the purchasers or to the donee and [511] that, therefore, the plaintiff cannot recover. Several questions are raised, but need not be determined because one issue must dispose of this appeal There was no memorandum executed to comply with the Statute of Frauds. Under these circumstances the title does not pass to the vendee and the carrier may assert this defense against the vendee. (Fein v. Weir, 129 App. Div. 299, 300; Krulder v. Ellison, 47 N. Y. 36; O’ Neill v. New York Central & H. R. R. R. Co., 60 id. 138.) It follows as a matter of course that the title must remain in the vendor. While it is true that these cases were decided under the old form of statute making the contract void, the old statute was uniformly construed as the equivalent of the new statute to the effect that the contract “ shall not be enforceable by action.” (40 McKinney’s Consol. Laws, p. 123, and cases there cited.) The judgment is, therefore, affirmed, with twenty-five" dollars costs. All concur; present, Guy, McCook and Proskauer, JJ.