Simers v. Kellogg 178 A.D. 881

Per Curiam:

It would serve no purpose to review the involved and complicated facts. It suffices to state that, drawing the inferences to which the plaintiff is entitled on a dismissal of the complaint, the evidence would have warranted the jury in finding that the washers replevined were those sold to the plaintiff on August 7, 1913. It clearly appears that the washers agreed to be delivered were those in transit, destined for the defendant Kellogg, that they were the only ones in transit destined for either of the defendants, that the defendant Kellogg was then entitled to their possession, that defendant Kellogg, pursuant to some private arrangement with her mother, defendant Hayes, with which we have no concern on this state of the record, undertook and agreed to turn them over to the plaintiff in fulfillment of the contract negotiated by her in the name of her mother and that these were the identical goods seized by the sheriff. The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event. Present — Clarke, P. J., Laughlin, Scott, Davis and Sheam, JJ. Judgment and order reversed, new trial ordered, costs to appellant to abide event.