Statement of case.

LOUIS SIEDENBACH, Appellant, v. JULIA A. RILEY, as Administratrix, etc., Respondent.

An order of General Term reversing a judgment entered upon a verdict directed by the trial court and ordering a new trial, is not res adjudicata between the parties, and upon an appeal to this court from a General Term judgment, affirming a judgment rendered on a second trial, every question of law appearing in the record can be considered as if the General Term decision was rendered upon a first appeal.

Where the complaint in an action to recover possession of personal property contains no averment of a wrongful taking, but simply alleges a wrongful detention, a general denial puts in issue both plaintiff's title and the wrongful detention, and under it defendant may show title in a stranger although he does not connect himself with the title. The fact that an agent in a contract for the purchase of property binds himself individually, as well as his principal, to pay the purchase-price, does not give him title, or conclusively establish title in him, where the evidence discloses that he, in fact, purchased for his principal. In an action to recover possession of property alleged to have been wrongfully detained, plaintiff claimed under a bill of sale which the evidence showed was intended as a mortgage. The instrument was not filed as a chattel mortgage. The property was at the time in store, and was subsequently levied on by defendant's intestate by virtue of an attachment. There was sufficient evidence to justify a finding that it never went into plaintiff's possession prior to the levy under the attachment. Held, that as against the attaching creditor the mortgage was void under the statute (Chap. 279, Laws of 1833); that a mere constructive possession would not answer the requirements of the statute.

Also, held, that if the instrument was intended as a pledge, there was a similar infirmity in plaintiff's position, as a pledge could not become operative without delivery to the pledgee.

Also, held, that a similar infirmity attaches if the instrument was to be considered as a bill of sale, in the absence of proof that it was made in good faith and without intent to defraud, as the sale not having been accompanied by immediate delivery and followed by a continued change of possession was presumptively fraudulent as against creditors of the vendor. (2 R. S. 136, § 5.)

(Argued December 3, 1888; decided December 11, 1888.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 17, 1886, which modified, and affirmed

Statement of case.

as modified, a judgment in favor of defendant entered upon a verdict.

This was an action to recover possession of certain rifles and "spare-parts" belonging thereto.

On the 13th day of February, 1879, Roderigo Toledo held some kind of agency for the government of Honduras, and on that day he entered into a contract with one Farington, in which he is described as "R. Toledo, Esq., special commissioner of the Republic of Honduras," whereby Farington agreed to sell to the government of Honduras, six thousand rifles, with the spare parts furnished therewith, for the sum of $6.60 each; and Toledo agreed on his own behalf and on behalf of the government of Honduras to pay for the rifles on delivery. In pursuance of that contract, Farington delivered to Toledo two thousand five hundred rifles and the spare parts belonging thereto, then stored in the United States. government ordnance building at the Brooklyn navy yard, and Toledo paid therefor and left one thousand of them and the spare parts at that place. The plaintiff claims that some time prior to July, 1879, he loaned $17,000 to Toledo, and took as security therefor a quantity of jewelry; that he held the jewelry as security for the loan until July 21, 1879, when Toledo paid $12,000 on the loan under an agreement by which he was to receive from the plaintiff the jewelry and substitute therefor as security for the balance of the loan the one thousand rifles and the spare parts remaining at the navy yard, and that to carry out that agreement the following instrument was executed between the parties on that day: "In consideration of one dollar to me in hand paid by Louis Siedenbach, Esq., I hereby sell, assign, transfer all my right, title and interest in one thousand Remington standard rifles, calibre fifty, Springfield pattern, now deposited in the navy yard of the United States in Brooklyn, to the said Louis Siedenbach, with the conditions that I, or the parties representing me, shall have the right to purchase the same at any time within three months from date, for the sum of $7,272.37." Toledo, immediately SICKELS-VOL. LXVI. 71

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after the execution of that instrument, left this country, and Farington, claiming that he owed him a large sum of money for breach of contract in December, 1879, commenced an action against him, and procured an attachment which was levied by the defendant's intestate, as sheriff of Kings county, upon the one thousand rifles and spare parts, and by virtue of the attachment the sheriff took and held the property. The complaint does not allege a wrongful taking of the property by the sheriff, or that he had become wrongfully possessed thereof, but simply alleges that he wrongfully detained the property from the plaintiff, and that its value was $7,500, and judgment is demanded that the defendant deliver the property to the plaintiff and pay him damages for the detention thereof. In his answer the defendant denies that he wrongfully detained the property described in the complaint, and avers that he had "no knowledge or information sufficient to form a belief that the said goods and chattels or any part thereof were, or are the property of the plaintiff ;" and further answering, he alleges the action arising upon contract to recover $6,000 of Toledo, the issuing of the attachment, the receipt of the same by him; that by virtue thereof he levied upon and attached the rifles, and that they at the time were the property of Toledo, or that Toledo had a leviable or attachable interest therein; and judgment is demanded for the return to him of the goods, and if return could not be had, then for the value thereof. The action was twice tried. Upon the first trial, at the close of all the evidence a verdict was directed in favor of the defendant. Upon appeal by the plaintiff to the General Term the judgment entered thereon was reversed (36 Hun 211); upon the second trial the cause was submitted to the jury, they found a verdict in favor of the defendant. Further facts appear in the opinion.

Albert Cardozo, Jr., for appellant. The decision of the General Term on the first appeal is res adjudicata, not only in respect to the questions that were then expressly passed upon by the court upon that record, but also as decisive of the

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legal questions which might have been raised by the defendant, as necessarily incident to the judgment of reversal. (Goslin v. Cowell, 56 N. Y. 626; Furness v. Ferguson, 34 id. 484; Wilson v. Barney, 5 Hun, 257; Barrington v. D. & H. C. Co., 13 Week. Dig. [3d Dept.] 357; Oakley v. Aspinall, 13 N. Y. 500; Eaton v. Alger, 47 id. 345; Justice v. Lang, 52 id. 323; Worrall v. Munn, 53 id. 185; Towle v. Remsen, 70 id. 307, 308.) Where unimpeached witnesses testify distinctly and positively to a fact, and are uncontradicted, their testimony should be credited and have the effect of overcoming a mere presumption. (Newton v. Pope, 1 Cow. 110; Loomer v. Meeker, 25 N. Y. 361; Lesser v. Wunder, 9 Daly, 70; Whiton v. Snyder, 88 N. Y. 302; David v. Williamsburgh City F. Ins. Co., 83 id. 265.) The introduction by the defendant of the evidence of the plaintiff, as given on the former trial, is conclusive proof of the facts deposed to. (Fogg v. Edwards, 20 Hun, 90; Elwell v. W. U. Tel. Co., 45 N. Y. 553.) Although the plaintiff establishes by his evidence a prima facie cause of action, so that when he rests his case a refusal to order a nonsuit is proper, yet if the evidence on the part of the defendant is very greatly preponderating, and especially where that preponderance arose from the facts and circumstances uncontroverted, the court would set aside a verdict for the plaintiff as against the evidence. (Kinsman v. N. Y. Mut. Ins. Co., 5 Bosw. 460; Smith v. Etna Ins. Co., 49 N. Y. 211; Sheldon v. Clews, 17 Week. Dig. 411; McDonald v. Walter, 40 N. Y. 553; Macy v. Wheeler, 30 id. 237; Kelly v. Frazier, 2 Civ. Pro. 324; Jackson v. Odell, 9 Daly, 372; Allis v. Leonard, 58 N. Y. 288; Benham v. Cary, 11 Wend. 82; Seibert v. Erie R. Co., 49 Barb. 583; Gale v. Wells, 12 id. 84; Wardell v. Hughes, 3 Wend. 416; Johnson v. Johnson, 15 id. 647.) Declarations of the assignor as to personal property, though made before the assignment, are not admissible against an assignee for value. (Van Sachs

v. Kretz, 72 N. Y. 548; Truax v. Slater, 86 id. 620; Clews v. Kehr, 90 id. 633; Dodge v. Trust Co., 93 U. S. 379.) Declarations by the grantor, made after the sale, have always been

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considered incompetent. (Culver v. McCartney, 40 N. Y. 220; Tilson v. Terwilliger, 56 id. 237; Burnham v. Brennan, 74 id. 597.) If the change of possession was not absolute and immediate and continued, the good faith of the transaction may still be shown to the jury, for the failure to give possession only raises a presumption of fraud, which may be rebutted by proof that the transaction was fair. (Siedenbach v. Riley, 36 Hun, 213.) The court has a right to send back the jury where the verdict is informal, and where it becomes manifest that a mistake is made. (Warner v. N. Y. C. & H. R. R. R. Co., 52 N. Y. 427.)

Thomas E. Pearsall for respondent. The evidence in support and against plaintiff's claim left it a question of fact for the determination of the jury whether the plaintiff had established his claim to the ownership of the rifles. (36 Hun, 211; 6 N. Y. State Rep. 104.) The rifles in question. were sold to the government through Toledo, its agent, and paid for by the government's money, hence the plaintiff could not recover herein. (Griffin v. L. I. R. R. Co., 101 N. Y. 348; Rooney v. Coon, 6 Hun, 645; Manning v. Worter, 7 id. 482.) The title to the rifles being in the government of Honduras, Toledo, its agent, could not sell or pledge these goods of his principal for his own debt, much less for the debt of another. (Donito v. Mosquera, 2 Bosw. 40; Van Amringe v. Peabody, 1 Mason, 440; Halloway v. Stevens, 48 N. Y. 129; Parsons v. Webb, 8 Greenl. 38; Morris v. Watson, 15 Minn. 212; Foss v. Robertson, 46 Ala. 483; Howell v. Pratt, 5 Cush. 111; Stevens v. Cunningham, 3 Allen, 491; Salters v. Everett, 20 Wend. 275.) Had the jury decided that Toledo was the owner of the rifles, the evidence showed that the instrument under which plaintiff claimed was but a chattel mortgage, which was void as against Farington, for the reason that it was not filed and was not accompanied by an immediate delivery and followed by an actual and continued change of possession of the thing mortgaged. (Chapman v. Butler, 18 Johns. 169; Smith v. Beattie, 31 N. Y. 542;